The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s decisions not to enforce against his neighbour’s replacement windows. The complaint about the 2018 decision is late and there are no good reasons to investigate it now. There is not enough evidence of fault in the Council’s 2021 decision-making process, or enough evidence of delay in taking planning action, to warrant an investigation. We also cannot achieve the outcome Mr X wants from his complaint.
The complaint
Mr X lives next to a property in which the owner replaced their windows. He complains the Council: has failed to take enforcement action against his neighbour’s replacement windows; made two different enforcement decisions in 2018 and 2021; delayed in applying planning control; delayed in dealing with his complaint.
Mr X says differences in the new windows’ designs from those they replaced have resulted in a loss of his privacy. He says the matter has destroyed good neighbourly relations, cost him time, and caused him inconvenience and stress. He wants the Council to take enforcement action against the neighbour regarding the windows.
The Ombudsman’s role and powers
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 Ombudsman investigates 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 may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating; or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants.
(Local Government Act 1974, section 24A(6)) We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information from Mr X, and the Ombudsman’s Assessment Code.
My assessment
Mr X knew about the neighbour’s replacement windows in 2018 when he reported it to the Council. The Council replied to his report but not to his satisfaction. Officers decided they would not take enforcement action against the neighbour. Mr X says he waited for two years before he decided to complain to the Council in May 2020. Mr X’s complaint about the 2018 decision is late. We expect people to bring the matter complained of to us within 12 months of their becoming aware of it. If Mr X was dissatisfied with any Council action or inaction in 2018, he should have complained then.
We may investigate a late complaint if there are good reasons to do so. There are no such reasons here. It was Mr X’s decision to wait two years before pursuing the matter, rather than doing so sooner. In any event, investigation of the Council’s 2018 enforcement decision would not result in a different outcome or give any benefit now, as it has been superseded by the 2021 decision.
The complaint about the Council’s 2021 enforcement decision is also late. But the lateness of this part of the complaint was caused by the Council. Officers gave Mr X extra time to request a stage two investigation. The Council then took eight months to give its final complaint response. These Council delays in its complaint process provide good reason for us to investigate this part of the complaint, even though it is late.
After stage one of its complaint process, the Council decided to reinvestigate the windows and its earlier planning enforcement decision. Officers decided that the new windows did not amount to development, did not require planning permission and so there was no planning control breach for the Council to enforce against. They closed their enforcement investigation and advised Mr X of their decision in early 2021.
We can only go behind a council’s decision where there has been fault in the decision-making process which, but for that fault, a different outcome would have been reached. To inform and make their professional judgement decision, officers visited the property and took photographs of the location. They then considered whether there were grounds for them to use their discretionary powers to take enforcement action against Mr X’s neighbour’s windows. There is not enough evidence of fault in the Council’s decision-making process here to warrant an investigation. Officers took actions and followed an appropriate process to reach their decision. I recognise Mr X disagrees with the decision. But it is not fault for a council to properly make a decision with which someone disagrees.
Mr X says the Council made different enforcement decisions in 2018 and 2021. The lateness of the 2018 complaint and the fact that decision is superseded by the 2021 decision, as explained above, means we will not investigate this part of the complaint. Even if we were to investigate, both decisions resulted in officers not enforcing. So there was no material difference to the Council’s enforcement actions from the two different outcomes which justify an investigation.
Mr X says the Council delayed in implementing planning control regarding the windows. There were delays in the Council reaching its final view on enforcement because it chose to review the 2018 decision. But since the Council’s last 2021 decision was the windows involved no planning breach, and so officers would not be using any enforcement powers, we cannot say there was a delay in officers taking planning control action. There is not enough evidence the Council delayed in enforcing because there is insufficient evidence it ever decided to enforce.
Mr X wants the Council to take enforcement action against his neighbour. We cannot order councils to use their enforcement powers. This means we cannot achieve the outcome Mr X seeks from his complaint, a further reason for us not to investigate.
The Council has accepted numerous faults in its complaint process. Its final complaint response to Mr X details various faults, including a long delay in bringing its internal complaint process to a close. Officers have apologised for those faults. We do not investigate councils’ complaints processes in isolation, where we are not investigating the core issues which gave rise to the complaint. It is not a good use of our limited resources to do so. That limitation applies here so we will not investigate this part of Mr X’s complaint.
Final decision
We will not investigate Mr X’s complaint because: the complaint about the 2018 enforcement decision is late and there are no good reasons for us to investigate it now; and there is not enough evidence of fault in the Council’s decision-making process to determine the 2021 enforcement matter to warrant us investigating; and there is not enough evidence of the Council delaying implementing planning control, nor of the Council ever intending to take such action, to justify us investigating; and both enforcement decisions in 2018 and 2021 resulted in the Council not enforcing, so there was no material difference to the outcomes which would warrant an investigation; and we cannot achieve the outcome Mr X wants; and we will not investigate the Council’s internal complaint process where we are not investigating the core issue giving rise to the complaint.
Investigator's decision on behalf of the Ombudsman