The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s failure to respond to communication from Mr X following the issuing to him of an Abatement Notice. This is because the complaint falls outside our jurisdiction due to the availability of appeal rights against the Notice to the Magistrates’ Court.
The complaint
Mr X complains the Council ignored his appeal against the Abatement Notice issued to him in October 2022 and delayed or failed to respond to subsequent communication from his solicitors about it. He says he was forced to employ solicitors and he seeks the reimbursement of his legal costs.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by the complainant, including the Council’s response to his complaint.
I considered the Ombudsman’s Assessment Code.
My assessment
In October 2022 the Council issued Mr X with an Abatement Notice for noise nuisance. The Notice advised Mr X of his appeal rights against the Notice to the Magistrates’ Court within 21 days.
Mr X instructed solicitors to act for him in December 2022. They wrote to the Council in March 2023 advising that Mr X had lodged his own appeal against the Notice in October 2022 and asking for the evidence which supported the issuing of the Notice. Various communications were exchanged between Mr X’s solicitors and the Council. In its response to Mr X’s complaint about these matters, the Council acknowledged and apologised for a string of delayed and missed responses.
The restriction highlighted at paragraph 3 applies to Mr X’s complaint. He had appeal rights against the issuing of the Abatement Notice to the Magistrates’ Court which we would reasonably have expected him to have used and for this reason the complaint falls outside our jurisdiction and will not be investigated.
While the Council’s various failures and delay in responding to communication about Mr X’s case are noted, they are secondary issues and we will not investigate them when we are not investigating the substantive issue.
Final decision
We will not investigate Mr X’s complaint because it falls outside our jurisdiction due to the availability of appeal rights against the Notice to the Magistrates’ Court.
Investigator's decision on behalf of the Ombudsman