The Ombudsman's final decision
Summary: Ms X complains about the Council’s handling of matters relating to a property she owns. We will not investigate the complaint because it is a late complaint and because Ms X had appeal rights we would reasonably have expected her to have used so placing the complaint outside our jurisdiction.
The complaint
The complainant, who I refer to as Ms X, says the Council failed to properly progress a complaint she had made about the actions of its officers in connection with the registration of her property as an Asset of Community Value (AVC) in 2017, about the issuing of a Community Protection Notice (CPN) to her in 2017 and about various planning application decisions.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b)) The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals, including those about a decision to refuse planning permission.
The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
How I considered this complaint
I considered information provided by Ms X and the Council.
I considered the Ombudsman’s Assessment Code.
I gave Ms X the opportunity to comment on my draft decision.
My assessment
The restriction highlighted at paragraph 3 applies to the substantive elements of Ms X’s complaint. Ms X knew of the registration of the property as an AVC and about the issuing of the CPN in 2017. As we would reasonably have expected her to have complained to us about these matters sooner, we will not investigate them now as they fall outside our jurisdiction.
Moreover, Ms X used her right of appeal against the issuing of the CPN in the magistrates court and while the Council decided to withdraw the Notice, the restriction highlighted at paragraph 6 still applies and we cannot investigate the matter.
The restriction at paragraph 4 applies to Ms X’s dissatisfaction with the decisions taken by the Council on her planning applications. She had the right to appeal the decisions to the Planning Inspectorate and as we would reasonably have expected her to have used this alternative remedy, these matters fall outside our jurisdiction and will not be investigated.
Planning Enforcement visits took place between 2015 and 2019 and so are too far in the past to be investigated now. Ms X would have been aware of them at the time and could have complained about them then.
We normally expect someone to refer a complaint about data protection issues to the Information Commissioner. Ms X has already taken her case against the Council about her Subject Access Request to the Commissioner and as this is the body best placed to address such matters, we will not investigate them.
Final decision
We will not investigate this complaint. This is because it is a late complaint and because Ms X had appeal rights we would reasonably have expected her to have used so placing the complaint outside our jurisdiction.
Investigator's decision on behalf of the Ombudsman