Where an alternative right or remedy has already been used

Where someone has already;

• started court proceedings against a council; or
• appealed, or started an appeal to a government minister; or
• appealed, or started an appeal to a statutory tribunal;

the Ombudsman cannot consider the decision that has or will be the subject of court action or appeal. Once proceedings have started the Ombudsman has no discretion to investigate.

Examples:

• When someone has taken an action for disrepair in the courts.
• When someone has appealed to the Secretary of State against a refusal of planning permission.
• When someone has appealed to a Parking Adjudicator (Statutory Tribunal) about a Penalty Charge Notice.
• When someone has submitted an application to the courts seeking leave for Judicial Review of a decision.

Please note that although the Ombudsman cannot consider the matter which is, or has been put before the court, government minister, or statutory tribunal, there may be other aspects of the complaint which can be separated and so may be investigated by the Ombudsman. These include:

• complaints about delays in making decisions about housing benefit entitlement or in forwarding appeals to the Appeals Service and the injustice that may cause.
• A failure to respond to a request for a statement of educational need (SEN) or delay in completing it.
• Where a Liability Order has been issued for non-payment of council tax the Ombudsman may consider complaints about the way in which the debt is collected.

Please seek advice on 0845 602 1983 if you are at all unsure whether or not the Ombudsman will be able to investigate a complaint.

Where an alternative right or remedy is / was available but has not been used

Where someone has or had an alternative right or remedy available to them (irrespective of whether the action may or may not have succeeded) but has not started court proceedings or an appeal then the Ombudsman will consider whether or not to investigate their complaint. If the Ombudsman thinks that your client could not reasonably be expected to use or have used the available alternative remedy then he or she may decide to investigate. Each case is considered on its own merits but as a general guide the Ombudsman may consider investigating in the following circumstances:

• Where someone was not aware of their alternative right or remedy and the council had unreasonably failed to inform them of it;
• Where someone has been prevented from appealing due to ill health or through absence;
• Where there is no possibility of making a late appeal and there are good reasons why your client did not appeal earlier;
• Where it would be unreasonable to expect someone to take court proceedings because the likely cost would be disproportionate to the possible benefit.

Please seek advice on 0845 602 1983 if you are at all unsure about whether the Ombudsman would consider it to be reasonable for your client to have pursued an alternative right of appeal.