Independent Complaints Reviewer for Land Registry
Annual Report 2010-2011
Annual Report 2010/11
Report contents
1. Introduction
I have now completed three years as Independent Complaints Reviewer (ICR) for Land Registry, and I have learnt a lot over that time – about the complexities of land law and the technical difficulties of making accurate maps and plans, and about the intense distress people can experience when they have problems relating to land ownership and registration. My role as ICR involves looking at these problems from an independent point of view, explaining what has caused them, deciding whether there were shortcomings in the service provided by Land Registry and, if so, what should be done to put things right. My overriding aim is to look for practical solutions to individual problems and also to identify positive action that Land Registry can take to improve the way it responds to customers' needs and expectations.
The past year has been challenging but successful for the ICR office. We've tackled a heavy caseload, involving some very complex cases, and managed to achieve a 25 per cent increase in productivity, in spite of having a vacancy in our team for half of the year.
For Land Registry and its staff rapid change has continued, as the Accelerated Transformation Programme launched in 2009 has been implemented, and a further wide-ranging review of the future direction of land registration has been announced. I have been very much aware of the risk that these ongoing changes could have a negative impact on the service Land Registry provides to its customers. It is very encouraging to be able to report, therefore, that I have found no evidence of this. All the signs I have seen, in the cases I have reviewed, suggest that Land Registry staff remain committed to providing the best service they can for the public. Where things go wrong, it is rarely because of any lack of effort on the part of staff.
The main lessons for Land Registry from my reviews, as in previous years, are about the importance of effective communication in this complex area. People often approach Land Registry with quite unrealistic expectations of what it can do to help them. Land Registry has a very important role, but it is first and foremost a recording agency that relies on the information it receives from applicants. It does not have power to decide disputes, though it may be able to refer these to the independent tribunal headed by the Adjudicator. Nor can it get involved in policing boundaries and rights of way. It is important for Land Registry's customers to be clear on these points from the start, to avoid them having unrealistic expectations.
I have two main objectives when I investigate a complaint: first to resolve issues for the individual customer; and second to help Land Registry improve its systems and procedures to enhance customer service generally, and reduce the chances of similar problems cropping up in future. In section 5 of this report I highlight the work that Land Registry has done to ensure that it learns from complaints, and that the recommendations I make in individual cases are followed through. I am well aware from my wider experience of public services that this is often an area of weakness. Land Registry's Independent Complaints Reviewer Evaluation & Study Team (ICREST) is an innovative response to the problem, and an example that others could usefully follow.
I mentioned in last year's report that Land Registry (led by ICREST) introduced a revised complaints procedure in April 2010, with the aim of providing a clearer, simpler pathway for complainants to follow. I predicted in last year’s report that this would bring benefits all round, making it easier for customers to pursue a complaint while reducing the time, effort and cost of the process. Over the last 12 months I have started to see this prediction fulfilled. Complaints are being referred to me at a much earlier stage, with the result that Land Registry's customers have a quicker, easier route to getting an independent review of their complaints.
External feedback is always valuable. The ICR office always asks complainants for their feedback, and the figures show that the majority are satisfied with the service provided, even though they may remain dissatisfied with the final outcome. This year we had the added benefit of expert external feedback as two of our cases were reviewed by the Parliamentary and Health Service Ombudsman (PHSO). PHSO is the final reviewer of complaints in the public sector, and her reports carry great authority. It was extremely useful to have PHSO's detailed comments on the issues that I had considered, and very encouraging that the specific recommendations I had made for redress were adopted without amendment.
The year ahead looks sure to be full of opportunity and challenge both for Land Registry and for the ICR office. Public expectations in terms of service and value for money have never been higher, and major changes in public services and the way they are delivered will continue.
At the end of 2010/11 Marco Pierleoni moved on from his role as Chief Land Registrar and Chief Executive of Land Registry and Malcolm Dawson, former Director of Human Resources, was appointed. I look forward to establishing an effective professional relationship with him and his new Board. As I have already mentioned, a review on the longer-term future of Land Registry is under way, and will bring further organisational change. My office is well placed to support Land Registry in keeping a clear focus on customer service standards, and an effective process for responding to complaints.
As far as the ICR office is concerned, we have a new office manager to strengthen our small team, and we are also due to move to new premises. In addition, legislation is due to be implemented to bring the ICR office within the scope of the Freedom of Information Act. We welcome this development, which will reflect and formalise our existing practice of openness and transparency. We remain committed to providing a high quality independent and cost-effective service, and to continuing to respond to the current imperative to 'do more with less'.
Elizabeth Derrington
Independent Complaints Reviewer for Land Registry
2. The ICR office and service
Our mission
To seek a fair resolution of complaints.
Our purpose
To provide a free, effective and impartial complaints review and resolution service that settles complaints in a proportionate manner and makes a positive difference for future Land Registry customers.
People can expect from the ICR team:
courtesy
honesty
respect
objectivity
plain language.
The principles of good complaint handling
The ICR is an associate corporate member of the British and Irish Ombudsman Association (BIOA) and BIOA’s principles of good complaint handling underpin the process the ICR carries out when reviewing a complaint. They are:
clarity of purpose: each review includes a clear statement of its purpose, intent and scope
accessibility: the service is free, open and available to all who need it
flexibility: procedures are responsive to the needs of individuals
openness and transparency: we provide public information that demystifies our service
proportionality: the process and resolution are appropriate to the complaint
efficiency: the service strives to meet challenging standards of good administration
quality outcomes: complaint resolution leads to positive change.
Our office
The ICR office was opened in February 1998 and has been reviewing complaints about Land Registry since that time. A team of staff seconded to the office, on a short-term basis, from Land Registry supports the ICR. These staff bring to the ICR office the benefit of their knowledge of Land Registry practice and procedure and the legislation under which Land Registry operates. Their independence of approach is assured by initial training in the ICR methodology, and the fact that, during their period of secondment, they are responsible directly to the ICR rather than to Land Registry management.
Our remit
Anyone who has made a complaint to Land Registry and is dissatisfied with the outcome can ask the ICR to review the matter. However, the ICR cannot review or overturn Land Registry’s legal decisions, or investigate issues that are subject to proceedings before the Adjudicator to HM Land Registry or a court. In addition, the ICR will not generally be able to accept a referral made more than six months after the date of the final complaint response from Land Registry.
Initial enquiries
Before a complaint is accepted for review, a preliminary investigation is carried out to determine whether or not the complaint is one that falls within the ICR’s remit. This may involve discussion with the complainant to find out more about his or her continuing areas of dissatisfaction, and to gain an understanding of the outcome the complainant is hoping to achieve. It may also be necessary to make enquiries of Land Registry in order to clarify that its internal complaints procedure has been fully completed. If the complaint is not one that the ICR can consider, we will offer advice to the complainant on options for pursuing the matter.
Full review
Where there is a full review, a summary of the issues is sent out to the complainant for agreement. This is to make sure there is a clear, shared understanding of the areas to be addressed from the outset. A copy of the summary is sent to Land Registry for comment, and at the same time the original files are requested. All the available information is analysed in detail and the ICR considers whether the concerns that have been raised are justified.
The outcome of the review is a letter to the complainant, copied to Land Registry, giving the ICR’s conclusions and any recommendations. The aim of a report is to set out, in as clear and simple a way as possible, the ICR’s opinion on the way in which matters have been handled by Land Registry, and to provide redress in appropriate cases. Both the complainant and Land Registry have the opportunity to comment on a draft before the report is finalised.
Redress
The ICR has three main forms of redress at her disposal and these are:
that Land Registry should issue an apology
that Land Registry should make a consolatory payment (maximum £5,000) in recognition of distress and inconvenience experienced as a result of shortcomings in the service provided by Land Registry
that Land Registry should consider making changes to its practices and procedures.
In deciding when to consider making a consolatory payment the ICR has regard to the ICR Financial Redress Policy. The sums paid are relatively small sums to reflect distress and inconvenience an individual may have suffered. They are fixed according to the seriousness of any service failures identified, as well as the particular circumstances of the individual complainant.
3. Facts and figures
Caseload
The number of complaint reviews completed during the year was 25 per cent higher than in 2009/10. This was a great achievement, especially as from October 2010 the office was operating with fewer than its full complement of staff.
Less satisfactory was the fact that we failed to meet our 26 week target of completing reviews. The average overrun was 12 days. Customers appreciated the fact that we kept them fully informed of progress with their cases. Nonetheless the late delivery of results was not acceptable, and tackling the problem is a key challenge for 2011/12.
The table below shows the caseload for 2010/11 compared with the previous year, and also the numbers of complaint issues upheld and rejected. The proportion of issues upheld was rather lower than in 2009/10. I believe, however, that this is simply a result of natural fluctuation rather than indicating any significant underlying trend.
Year |
Cases completed | Total issues | Issues upheld | Issues rejected |
|---|---|---|---|---|
2010/11 |
30 |
110 |
35 (32%) |
75 (68%) |
2009/10 |
24 |
79 |
34 (43%) |
45 (57%) |
The range of issues raised by complainants was similar to previous years, as illustrated by the next table. The great majority of concerns were from customers who felt that Land Registry had not followed proper procedures in dealing with applications, or had not provided satisfactory explanations of its actions when challenged. It is not surprising, in view of the complexity of land registration, that these were the issues raised most often. The strong focus of concerns in these two areas clearly highlights the need for Land Registry to use simple non-technical language, both to describe, in general terms, what it does and how it does it; and also to explain the reasons for specific actions or decisions.
Issues reviewed by category |
2010/11 |
2009/10 |
|---|---|---|
Advice |
1 |
2 |
Bias |
5 |
4 |
Communication |
20 |
17 |
Complaints process |
7 |
1 |
Cost |
1 |
3 |
Delay |
6 |
7 |
Discourtesy |
6 |
4 |
Practice and procedure |
63 |
39 |
Register errors |
0 |
2 |
Responsiveness |
0 |
3 |
Other |
1 |
0 |
Total issues reviewed |
110 |
81 |
Recommendations
My recommendations to Land Registry are designed to provide redress to individual customers and also to help Land Registry improve its systems and procedures to reduce the risk of similar complaints recurring in the future. The types of recommendation made in 2010/11 as compared with 2009/10 are set out in the table below.
Recommendation type |
2010/11 |
2009/10 |
|---|---|---|
Apology |
54% |
37% |
Consolatory payment |
21% |
28.5% |
Review procedures/guidance |
10% |
8.5% |
Remind staff of existing procedures/guidance |
2% |
6% |
Review/improve public information |
10% |
3% |
Other |
2% |
17% |
Land Registry responded positively to all my recommendations. As already mentioned, Land Registry's ICREST played a vital role in planning and tracking the response (see section 5 for more information on ICREST and it recent projects).
Feedback
The office requests feedback following each review on the quality of service the complainant feels he or she has received. We received completed feedback forms in a total of 27 per cent of cases – a figure that remains stubbornly disappointingly low, in spite of a complete revamp of the form to make it shorter and easier to use.
Most of the customers who responded expressed satisfaction with the service they had received, though people who were disappointed with my conclusions on their complaints also tended to express dissatisfaction with the service overall. In addition a significant number expressed concern about the time it had taken to complete the investigation. As I have already emphasised, tackling delay is a key objective for the current year.
Financial information
As already mentioned, the ICR office is managerially independent from Land Registry.
The following table compared expenditure over the last three years, which demonstrates the success of our ongoing efforts to reduce running costs and improve value for money.
ICR running costs |
2010/11 |
2009/10 |
2008/9 |
|---|---|---|---|
Staff costs |
|
£204,133 |
£224,497 |
Administration |
|
£33,473 |
£87,997 |
Total |
|
£237,606 |
£312,414 |
4. Casebook
It is important to remember that the complaints that I review represent a very small proportion of the matters Land Registry deals with. Most transactions involving land are handled swiftly and professionally, and regular surveys indicate that well over 90 per cent of Land Registry's customers are satisfied with the service they receive.
Although the cases I see are the exception rather than the rule, they clearly highlight the sorts of problems that can arise in relation to land, and also the enormous distress that people can experience as a result. My task is to look at Land Registry's role and responsibilities, and to compare the way in which it actually handled situations with the way in which it should have handled them.
I have selected just a few examples of the issues that I have investigated during the past 12 months that illustrate the problems I have identified and the solutions I have recommended.
A misunderstanding that Land Registry could have helped resolve
Where I find failings by Land Registry, it is rarely the case that Land Registry was entirely to blame for what went wrong. Issues about land generally involve a number of different people, whether they are neighbours, buyers and sellers, people with rights over land, or conveyancers and legal advisers. Each has their own part to play in ensuring that all information is accurate and agreed, and that problems, if they arise, are resolved by agreement if at all possible.
In the case of Mr and Mrs A, there was a major misunderstanding during the 1980s regarding the sale of a piece of land. Land Registry could not possibly have been to blame for the misunderstanding, as none of the land involved was registered at that time. Later, when the land was registered, Land Registry had the opportunity to identify and clarify the misunderstanding, but failed to do so. By the time the problem was identified, it was impossible for it to be resolved in a way that was satisfactory for Mr and Mrs A.
The background was as follows. Mr and Mrs A’s house had been built on land that had originally been part of the back garden of an older property. The plot had been sold in the 1980s but, as later became clear, the seller and purchaser at that time had been at cross-purposes about the proportion of garden retained by the seller. The purchaser believed she had bought two-thirds of the garden, whereas the seller believed she had sold only one-third. When the remainder of the older property was sold for development in 2006, the developer applied to Land Registry for registration. Mr and Mrs A’s property was still unregistered at that time. In support of his application, the developer provided a formal statement describing the land he had bought, and also a plan with a line marked as being the 'approximate' position of a fence between his land and Mr and Mrs A’s property. Land Registry prepared the developer’s title plan on the basis of this information without asking any questions. In spite of the fact that the plan only showed an 'approximate' fence line, it did not ask for clarification of the area to be registered, nor did it make any attempt to contact Mr and Mrs A to make them aware of the application.
The result was that the developer became the registered owner of land that Mr and Mrs A had believed to be theirs for over 20 years. Mr and Mrs A, however, did not become aware of this until the builders arrived on the site. At that point they made their own application for registration, but a large part of the land they claimed was already part of the developer's title, and building work had started.
Land Registry accepted that it should have made more enquiries with the developer or his solicitors before granting the application for registration. I concluded, in addition, that even though Mr and Mrs A’s property had not been registered at that stage, Land Registry should have recognised that they would be directly affected by the registration, and should have attempted to contact them. It had their address, so this should not have been too difficult. If Land Registry had taken these fairly simple steps, the dispute might well have come to light earlier, and could have been settled before the developer's registration application was granted. As it was, events had moved on before Mr and Mrs A became aware of the situation, and the clock could not be turned back. Mr and Mrs A were so upset that they decided to move out of the family home to live in rented accommodation.
I decided that Land Registry bore significant responsibility for the fact that the dispute did not become apparent until it was too late for it to be settled by negotiation. I recognised that there would still have been a dispute to be resolved, and that it was impossible to know what difference it would have made if it had come to light earlier. In the circumstances I recommended a formal apology and a consolatory payment to reflect the fact that at least some of the distress experienced by Mr and Mrs A could have been avoided if Land Registry had handled matters differently.
Land Registry and the courts
It is important to realise that Land Registry has no power to decide who is right in a dispute about land. If no agreement can be reached, a dispute can only be determined judicially either by the Adjudicator to HM Land Registry or by the courts. Another important point is that once a judicial decision has been made, Land Registry has to accept it. A number of the complaints I reviewed in 2010/11 were from customers who were dissatisfied with the way in which Land Registry had acted in response to a court order.
Ms B and Ms C had ‘agreed notices’ entered by Land Registry on their titles following court orders regarding debts. Both complainants strongly contested the debts and felt that Land Registry had acted unfairly in recording the notices. When I investigated, I found that Land Registry has very little discretion in such situations. As long as there is evidence that a court order has been made, Land Registry must make the entry requested, even though the notice is in fact very far from being ‘agreed’.
Even though Land Registry has little choice in these situations, it is important that it should explain as clearly as possible what has happened and why. When I looked at the standard explanatory letter that Land Registry had sent to Ms B and Ms C, I found the information given, and the way it was presented, confusing and potentially misleading. There was no explanation of why the notices were described as 'agreed', when Ms B and Ms C had not agreed to them at all. The letter also completely failed to make clear that Land Registry had no power to investigate the validity of the claim on which the court order had been based.
I could entirely understand why Ms B and Ms C were perplexed and dissatisfied. At the same time, it was clear that Land Registry had no choice but to record the court orders and that it had followed normal procedures. In the circumstances, I did not uphold the complaints. Nonetheless I felt that the service that Ms B and Ms C had received from Land Registry had not been satisfactory, and I recommended that Land Registry should review the information it gives customers in these circumstances to make it simpler, clearer and easier to follow.
General or determined boundaries
People are naturally very concerned about the boundaries of their land, and often turn to Land Registry for help with boundary problems. As I have already said, Land Registry cannot sort out disputes, and is not responsible for policing boundaries. It can help by providing information from its records, but customers often hope for much more.
It does not help that the law regarding boundaries is very complicated, and difficult even for lawyers to interpret. The basic position is that most boundaries shown on Land Registry plans are 'general', which means that they show the general location of the property rather than the precise boundaries. People who want their title plans to show precise boundaries can apply to Land Registry for a boundary to be defined or 'determined'. Applications of this sort are very rare. The case of Ms D illustrated some of the reasons why this is so.
Ms D was concerned that Land Registry had registered an area of hedge and trees at the end of her garden as part of her neighbour's property. Land Registry responded by arranging for a surveyor to inspect the property, and offering to meet Ms D and her neighbour to help them reach an agreement. It was clear that the intention was to be helpful. It was also clear that Land Registry's actions gave Ms D the distinct (but mistaken) impression that Land Registry had power to decide the dispute.
Land Registry also explained the legal position, saying:
“The title plan is intended to do no more than assist in the identification of the property. In other words the extent of the land comprised in the registered title is determined by reference, amongst other things, to the pre-registration title deeds. The courts have made clear, however, that those title deeds may not be sufficient in themselves, and recourse may need to be had to topographical and other historical evidence relating to the property.”
I recognised that the intention was to be helpful to Ms D. I was concerned, however, that the explanation was in technical language and was very difficult for an ordinary member of the public to follow.
In addition, Land Registry mentioned to Ms D the option of applying for a 'determined' boundary, and provided two leaflets with information on when such an application may be worth considering. Ms D complained, however, that the information in the leaflets was confusing. When I considered the leaflets, I agreed. It was not at all clear from the information provided whether there was any point in an application for a 'determined' boundary in a situation where, as in Ms D's case, the position of the boundary was not agreed.
Although I was satisfied that Land Registry staff had made every effort to assist, I concluded that the net result had been confusing for Ms D rather than helpful. I recommended a consolatory payment for Ms D, and also that Land Registry should review its public information on 'determined' boundaries to make it much easier for customers to understand the factors they need to take into account when deciding whether to make an application.
When Land Registry may pay an indemnity
Land Registry has a specific power to pay compensation or 'indemnity' when a registered owner suffers loss as a result of a mistake in the register being corrected or 'rectified'. No payment is possible, however, if the register is simply amended (as opposed to corrected) or if no loss is caused. In addition only the registered owner of the title affected is entitled to a payment. I see quite a number of complaints from customers who have been told by Land Registry that they are not entitled to an 'indemnity' payment but do not accept the explanation given, and remain very dissatisfied.
Among the cases I considered in 2010/11 was a complaint from Mr E who had bought a house in good faith that turned out to have been the subject of fraud. The fraudster had stolen the identity of the original registered owner, who had recently died.
Mr E's solicitors did not register the transfer to Mr E promptly, and before they did so, the earlier fraud came to light. Land Registry received evidence that the original owner had died before the supposed sale to the fraudster, and concluded that the signature of the owner on the sale document must have been forged. Land Registry therefore amended the register to place the property in the name of the personal representatives of the original owner.
Mr E applied for an 'indemnity' payment for the loss of the property but Land Registry rejected it on the grounds that he had not been the registered owner at the time the register was amended. Land Registry wrote explaining the situation, but the explanation was in technical language and Mr E continued to feel that his claim had been unfairly and unreasonably rejected.
I concluded that Land Registry had followed normal procedures when it refused to make a payment, and also that it had attempted to explain the situation to Mr E. I did not uphold the complaint. I was, however, critical of the explanation that Land Registry had offered, and tried in my report to set out the position more clearly. In response Mr E said that although he was still distressed at what had happened, my report had enabled him to appreciate why Land Registry had not been able to make the payment he had applied for.
Rights that do not appear in the register
One of the aims of land registration is to provide a record, for the benefit of potential purchasers, of rights that affect the land they plan to buy. There are, however, some rights (known as overriding interests) that affect land even though they are not recorded in the register. The unfortunate corollary of this is that people whose property is affected by the rights are obliged to accept the right even where they were completely unaware of it at the time they bought their property. Conveyancers are expected to warn their clients of the possibility that such rights may exist. People who discover, after they have bought a property, that it is subject to overriding interests often feel that Land Registry has let them down.
One case of this type I dealt with in 2010/11 related to rights of way. Ms F, before buying her house, checked the register and found that it mentioned that one of the neighbouring properties had a right of way across her garden. After she completed the purchase, however, she found that two other nearby properties had similar rights. Land Registry amended her title to include these additional rights. Ms F complained that Land Registry should have ensured, before registering her property, that it was aware of all the rights that might affect it. She argued that, at the very least, Land Registry should warn purchasers that the information in the register on rights affecting a property may not be comprehensive.
Land Registry responded that the additional rights of way were 'overriding interests' and that they were binding even though they did not appear in the register.
I could fully understand the shock that Ms F had felt when she discovered the additional rights of way over her property. I found that, as the rights were overriding interests, Land Registry could not be held responsible for the fact that they were not recorded in the register. I agreed, however, with Ms F that it would be helpful for Land Registry to alert customers to the possibility that the rights shown in the register may not be comprehensive. I recommended that Land Registry should take steps to do this in future.
Another case concerned shooting rights. Ms G bought an area of woodland that she intended to use, among other things, as a campsite. Although she had heard that there might be shooting rights over the land, none were shown in the register at the time of the purchase. After Ms G had completed her purchase, however, Land Registry received, and granted, an application to register a lease of shooting rights over the property. It did not inform Ms G of the application before granting it.
When Ms G referred her complaint to me she asked me to consider in particular the fact that Land Registry had failed to inform her of the application for registration of the shooting rights, or to give her the opportunity to object. Ms G argued that it was clear from Land Registry's own guidance that she should have been informed.
After investigating, I was satisfied that the shooting rights were an overriding interest affecting the land, and that Land Registry did not have a responsibility to make sure that they were recorded on the register. I was satisfied also that in the specific circumstances of the case, Land Registry had not been obliged to inform Ms G of the application to register the rights. I welcomed, however, the fact that Land Registry had recognised, in the light of Ms G’s experience, that it would be appropriate to review its practice on this point. I also agreed with Ms G that Land Registry's public information was misleading, suggesting that owners of land would always be notified of an application to register shooting (or other similar) rights. I recommended that the information should be revised to make it clearer and more comprehensive, while taking into account the need to be as helpful as possible to people in the same situation as Ms G.
5. Closing the loop -– ICREST
The final, and crucial, stage in any complaints process is to ensure that the lessons of complaints are learnt, and firmly embedded in the organisation. As mentioned in my introduction, Land Registry has an innovative approach to this tricky task, in the shape of ICREST (the Independent Complaints Reviewer Evaluation & Study Team).
ICREST includes representatives from a wide range of departments within Land Registry and meets regularly to consider ICR reports and recommendations and to plan and oversee Land Registry's response. ICREST minutes are available to staff throughout Land Registry on the organisation’s intranet.
I do not believe that any other organisation has such a structured method to ensure that the lessons of complaints are recognised and then used to improve the organisation's systems and procedures.
The projects that ICREST has taken forward during 2010/11 include:
guidance on how to handle land registration issues involving Land Registry staff so as to avoid bias
arrangements for applications/complaints to be transferred to another office where there could be concerns about the impartiality of staff in the original office
guidance on how Land Registry handles applications where there are issues regarding a property owner's mental capacity
guidance on the importance of making a note of the content of telephone discussions with customers
guidance on the importance of ensuring that there are effective arrangements for dealing with correspondence in the absence of the designated member of staff
a review of Land Registry's public information on shooting (and other similar) rights.
These were just a few examples of the wide-ranging improvements to Land Registry procedures that have been prompted by my recommendations. The vital role that ICREST plays is in following the issues through, and ensuring that appropriate changes are made, and communicated to staff throughout the organisation.