Summary: We will not investigate this complaint that the Council has failed to address the complainant’s concerns about a business operating from a neighbouring council house. This is because we cannot investigate complaints about the management of social housing, there is not enough evidence of fault in the Council’s handling of the planning application for the business use or the subsequent reports of breaches of planning control, and the Council has addressed shortcomings in the associated complaint correspondence.

The complaint

1. Mr X says the Council has failed to properly respond to his concerns about nuisance caused by a business operating from a neighbouring property.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We can 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. So, we do not start 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 are satisfied with the actions a council has already taken.

(Local Government Act 1974, section 24A(6) & (7), as amended, section 34(B))

4. We can consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. And we cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)

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How I considered this complaint

6. I considered:
• information provided by Mr X and the Council, which included their complaint correspondence.
• information about the neighbour’s planning application, on the Council’s website.
• the’ Wigan Council Enforcement Policy’ document.
• the Ombudsman’s Assessment Code.

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My assessment

7. I appreciate Mr X is unhappy about the business operating next to his home. But, for the following reasons, the Ombudsman will not start an investigation into his concerns.
8. With reference to paragraph 5 above, we have no power to investigate any parts of the complaint about the Council allowing its tenant to operate a business from the property, as the law prevents us from considering issues about the Council’s management of its social housing.
9. We also do not provide a right of appeal against the Council’s separate decision on the neighbour’s planning application. Rather, our role is to review the way the decision was made. If we decide there was no fault in how it did this, we cannot question whether the Council should have reached a particular decision or say it should have reached a different outcome.
10. The officer’s report on the application summarises Mr X’s objections, and it goes on to consider the impact on his amenity. The Council was entitled to reach a professional judgement that the proposal was acceptable, even if Mr X disagrees with that decision. As such, there is not enough evidence of fault in the way the Council assessed the application to justify starting an investigation into this part of the complaint.
11. Similarly, it is not for the Ombudsman to dictate what, if any, planning enforcement action should have been taken when Mr X reported breaches of the conditions attached to the planning permission. It is for the Council to decide whether it is expedient to take any action.
12. Government guidance says Councils should not take enforcement action just because there has been a breach of planning control. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. Councils may decide to take informal action instead, or not to act at all. Here, the Council visited the neighbour to remind them of the conditions attached to the planning permission, and provided advice on how the impact of the business could be lessened. It also informed Mr X of the outcome of the visit. I find there is not enough evidence of fault in the way the Council responded to the alleged breaches of the planning conditions to justify pursuing this part of the complaint either.
13. The Council has apologised to Mr X for failing to provide sufficient information in the subsequent complaint correspondence about the planning enforcement process, and about how he could report future nuisance or breaches of the planning conditions. The Council’s apology and the provision of additional information was a satisfactory way to address this aspect of the complaint.

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Final decision

14. We will not investigate Mr X’s complaint because:

• We have no power to look at any parts of the complaint about the Council’s handling of the neighbour’s tenancy.
• There is not enough evidence of fault in the way the Council handled the planning application and the subsequent alleged breaches of the planning conditions.
• The Council has apologised for shortcomings in the associated complaint correspondence and has provided information to address this .

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Investigator's decision on behalf of the Ombudsman