Examples: Ombudsman's general discretion

S24A Ombudsman’s general discretion – no or insufficient injustice

A complaint that a council did not respond to correspondence within a reasonable time frame would not, of itself, usually cause significant injustice and would probably be rejected. But if the correspondence related to an enquiry where delay was pivotal, the injustice could be very significant – for instance, delay in dealing with a reported change of a benefit claimant’s circumstances might delay payment and so cause hardship.

The injustice has to be reasonably significant, but that is a matter of judgment in all the circumstances of the case. What may cause a relatively trivial injustice in one set of circumstances may be significant in some conditions:

• Two complainants approached the Ombudsman because there had been a month’s delay in paying their benefit. One complainant had suffered slight hardship because, in paying her share of the rent that month, she had paid a total of £17 more than she needed to. The council had already apologised to her. Her injustice was considered too slight to justify investigation. The other complainant had existing rent arrears of which the council had been made aware at the outset of her claim. She received a court summons because of the increased rent arrears. Her complaint was investigated.

S24A Ombudsman’s general discretion – other

This can be used to determine any complaint which is felt generally unsuitable for investigation.

S24A Ombudsman’s general discretion – time

Decisions under this heading are usually made because of the practical difficulties of obtaining sufficient reliable and conclusive evidence to enable a just and reasonable decision to be reached. This may be the case even where 26(4) is satisfied:

• A complaint was received from a mother with mental health problems, who had recently discovered certain facts about the way in which her children had been taken into council care over 15 years earlier, at a time when she was unable to care for them herself. The council had investigated under stage 2 of the statutory complaints procedure, but the complainant was too unwell to attend a review panel hearing. The Ombudsman did not investigate the original allegations because of the passage of time and the difficulty of obtaining a just result, but agreed to investigate the way in which the council had considered them.

S24A Ombudsman’s general discretion – withdrawn

The Ombudsman retains the right to continue to investigate a complaint, even if the complainant indicates that they wish to withdraw it. This protects complainants who might otherwise feel pressured by the council or by their circumstances into giving up against their inclination. In cases where the complainant has received a settlement which they consider satisfactory, it also allows the Ombudsman to obtain a remedy designed to prevent the maladministration from recurring, so that other people do not suffer similar injustice.

• A council gave planning permission to a school for a ramped pedestrian pathway between an entrance and a side gateway. The gradient of the path was shown on the plans but the council had not considered that the height of the path, where it ran close behind the complainant’s house and garden, would be level with his fencing panels. The school, which was not council-controlled, declined to alter the path. The complainant lost considerable privacy, but in negotiating with the council, agreed with officers to withdraw his complaint in consideration of a contribution to the cost of higher fencing. The Ombudsman continued his investigation in order to ensure that any improvements necessary in the council’s systems had been made.
   

Date Updated: 29/06/10