Summary: We will not investigate this complaint about a ‘right to buy’ application. Mrs X could reasonably have taken court action. It is unlikely we could reach a clear enough view on matters concerning the ‘right to buy’ application. It is more appropriate for the Information Commissioner and Tribunal to consider the alleged breach of the Freedom of Information Act.

The complaint

1. Mrs X complained the Council did not act on her application to buy her home in August 2021 and did not properly handle a freedom of information request.

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The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide: we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome, or there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I considered information provided by the complainant and copy correspondence from another complaint-handling organisation.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. In August 2021 Mrs X sent the Council a ‘right to buy’ application by first-class post. She did not hear from the Council, so chased the matter. In January 2022 the Council denied receiving the application. Mrs X therefore applied again to buy her home, but argues she lost out because interest rates had risen meanwhile. The Council disagreed those changes would disadvantage Mrs X significantly and argued the ‘right to buy’ discount had also increased in the meantime. Mrs X argued the principle that items sent by first-class post are deemed received two working days later should apply, so she believes the Council was wrong not to progress her application under the August 2021 conditions.
7. In March 2022 the Council told Mrs X she could complain to another complaint-handling organisation. Mrs X complained to that organisation a year later, in March 2023. That organisation had the complaint for over a year before telling Mrs X it did not have the power to deal with the complaint and referring the complaint to us. We have sought not to disadvantage Mrs X for complaining in good faith to the other organisation, or for how long that organisation took to respond.
8. The county court could consider arguments about whether the August 2021 application was deemed delivered to the Council, whether Mrs X was wrongly disadvantaged by having to apply to buy her home later than August 2021 and, if so, what if any action the Council should take about that. So the restriction in paragraph 2 applies. As the law expressly provides this route for resolving such disputes, we normally expect applicants to use it, with legal advice if necessary. On an important matter such as buying a home, it is reasonable to expect Mrs X would research her rights or get legal advice, so could reasonably have learned of her right to take court action. There might have been some cost to court action, but that in itself did not automatically make taking court action unreasonable, particularly in the context of a transaction for a valuable asset such as Mrs X’s home.
9. As explained above, Mrs X was not responsible for the time from March 2023 when her complaint was with another organisation. However, before then, Mrs X took a year to complain to that organisation after the Council finished dealing with her complaint in March 2022. That delay by Mrs X meant the events were even older by the time the complaint reached us. Overall, it is three years since the events in 2021. It is unlikely investigation by the Ombudsman would reach a clear enough view now about those events. Additionally, Mrs X’s argument about being financially disadvantaged by changes in circumstances after August 2021 is a claim of economic or consequential loss. Such matters are not straightforward and are more appropriately for the courts than for the Ombudsman.
10. For these reasons, it is reasonable to expect Mrs X to have used her right to go to court.
11. Mrs X might still have the right to take court action if she has not yet completed the purchase of her home. However, that does not affect my position either way, because my view is that Mrs X could reasonably be expected to have taken court action previously.
12. Mrs X also complained the Council did not reply within the statutory timescale to a request under the Freedom of Information Act 2000. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner. That approach is appropriate in this case. The Information Commissioner and the Tribunal have the relevant expertise and powers to decide if the Council acted wrongly. There is no good reason for us to investigate instead, especially as we are not investigating the substantive complaint about the ‘right to buy’ application.

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Final decision

13. We will not investigate Mrs X’s complaint. Mrs X could reasonably have taken court action. It is unlikely we could reach a clear enough view on the matters concerning the ‘right to buy’ application. It is more appropriate for the Information Commissioner and Tribunal to consider the alleged breach of the Freedom of Information Act.

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Investigator's decision on behalf of the Ombudsman