The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint that there is no formal contract in place between the Council and a company providing services on its behalf. This is because we cannot determine the legality of the arrangement. If Mr X believes the arrangement is unlawful it would be reasonable for him to make a claim against the Council at court. Only the courts can determine whether a valid implied contract exists between the parties and if Mr X is entitled to compensation for damages resulting from the Council’s actions or those of its contractor.
The complaint
The complainant, Mr X, complains the Council has no contract in place with its contractor for clamping vehicles. He also complains the Council has breached the General Data Protection Regulation (GDPR). Mr X believes action by the council’s contractor is unlawful and that the Council should therefore apologise to all motorists whose vehicles have been clamped and pay them compensation. He would also like us to request a detailed investigation by the police.
The Ombudsman’s role and powers
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: 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, or there is another body better placed to consider this complaint, or there is no worthwhile outcome achievable by our investigation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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 normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by Mr X and the Ombudsman’s Assessment Code.
My assessment
After the Council’s contractor clamped Mr X’s car Mr X has sought to prove the action taken against him was unlawful. He made ‘freedom of information’ requests to the Council to determine on what basis it had the power to clamp vehicles and the nature of the agreement between the Council and its contractor for its parking enforcement services. In response to these requests the Council provided Mr X a copy of an agreement signed by only one of the two parties and which ended in 2022. Mr X therefore questions the legality of any action taken by the contractor on the Council’s behalf and believes the lack of any formal agreement contravenes principles of contract law and public sector compliance. The Council has sought legal advice and considers there is an implied contract in place with the contractor and that the agreement to provide services on the Council’s behalf is lawful.
It is not for us to determine the contractual situation between the Council and its contractor; this is a matter for the courts. Contract law allows for the existence of implied contracts and whether the agreement referred to by the Council amounts to a valid implied contract is not something we can decide. If Mr X believes the action taken against him was unlawful he may report it to the police and make a claim against the Council and/or the contractor at court. The courts may also decide whether Mr X is entitled to any compensation for damages caused by the alleged breach of the GDPR, a matter which Mr X has already referred to the Information Commissioner.
Final decision
We will not investigate this complaint. This is because we cannot decide whether the contractor’s clamping activities under a claimed implied contract are lawful. If Mr X wishes to challenge the legality of the contractor’s actions and claim compensation from the Council it would be reasonable for him to take the matter to court.
Investigator's decision on behalf of the Ombudsman