The Ombudsman's final decision
Summary: We will not investigate Ms Y’s complaint about the Council’s handling of her housing register application. This is because we cannot investigate complaints where court action has been taken and the complaint is late.
The complaint
Ms Y complained the Council did not reinstate a May 2021 decision that she needed a two bedroom property after promising the court it would do so. Ms Y said she would have been rehoused by now but for the Council’s failings.
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) We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended) The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot 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) 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 cannot achieve the outcome someone wants, or there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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.
How I considered this complaint
I considered information provided by Ms Y.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms Y said that, in May 2021, the Council agreed she needed a two bedroom property due to her disabilities. In November 2021, after considering further evidence, it decided she only needed one bedroom. Ms Y challenged that decision in court. She said the Council had used fake medical evidence when making its decision in November 2021.
Prior to the court hearing, the Council withdrew the November 2021 decision and agreed to carry out a fresh medical assessment to decide how many bedrooms she needed. In May 2022 Ms Y complained the Council had not allocated a two bedroom property she had bid for. In October 2022, a fresh medical assessment was carried out. In November 2022, in its complaint response, the Council said it had asked Ms Y to complete a fresh online application but she had not done so, and that there was no evidence she needed an extra bedroom for a carer.
Ms Y asked the Council to consider the complaint at stage 2. She said the Council had not compensated her for its failure to award a two bedroom property in line with the court order in May 2021.
In its stage 2 response, in November 2023, the Council said it had previously advised Ms Y she needed to make an online application to its new housing register system and provide medical evidence so that a new medical assessment could be completed. The Council told us Ms Y’s application had been suspended following the 2021 review in line with its allocations scheme and it could not complete its medical assessment or share the 2022 evidence until Ms Y had made a fresh online application.
We usually expect people to complain to us within 12 months of the events they are complaining about. This is the case, even if they were unhappy with the time the complaints procedure was taking. Ms Y complained to us in January 2024 about events in 2021 and 2022 so her complaint is late. There is no evidence to suggest she could not have complained to us sooner. Therefore, we will not exercise discretion to investigate now.
In any case, we cannot investigate the way the Council made its decision in November 2021, including the medical evidence it relied on. This is because Ms Y has already taken court action about that. We cannot investigate where someone has already taken court action.
Nor can we achieve the outcome Ms Y wants, which is to ask the Council to reinstate the May 2021 decision that she needs two bedrooms. This is because the Council must make decisions in line with the medical evidence and its allocations scheme. It will make a fresh decision when she has completed an online application and provided up-to-date medical evidence.
Further, the Information Commissioner’s Officer (ICO) is better placed to address any dispute about whether she is entitled to the 2022 medical evidence under data protection rules.
There were some delays in the Council’s complaints process but we will not investigate complaints handling where we are not investigating the underlying matters.
For these reasons, we will not consider the complaint further.
Final decision
We will not investigate Ms X’s complaint because it is late. In addition, parts of the complaint have been considered by the court, and another body is better placed to consider whether Ms Y is entitled to see the 2022 medical evidence.
Investigator's decision on behalf of the Ombudsman