Local Government Ombudsman

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Guidance for LGO staff

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Has the complaint been made within 12 months?

Section 26B covers this. See examples.

One reason for the time bar is that the further away an investigation takes place from the events to be investigated the more difficult it may be to establish the material facts with reasonable confidence. This is because of faded memories and other difficulties in gathering evidence. The difficulty of carrying out a fair investigation has to be balanced against the seriousness of the injustice claimed. If there seems to be little evidence of maladministration or of injustice it is unlikely that discretion should be exercised.

There are three key points:

1. The 12 month period runs from the day the person affected had notice of the matters alleged in the complaint ie the maladministration complained about.

Examples

  • If planning permission was granted by the council several years ago but the complainant only later discovered that a member taking part in that decision had a personal interest, the 12 months will run from the date of the complainant’s discovery.
  • If the complainant has been waiting for housing from 1998 to 2000, when s/he was re-housed, but only later found out that this delay was due to the council’s failure to comply with its allocations policy, the 12 months will run from the date of the complainant’s discovery.

2. The complainant must have made the complaint (and not simply produced background correspondence) in writing (unless this requirement has been disapplied in the specific case) to the Ombudsman (either directly or through a councillor) within 12 months.

3. Whether it is reasonable to exercise discretion to investigate. The reasons for the exercise of discretion must be noted on the file. The following guidelines should be taken into account.

In the case of R v Local Commissioner, ex parte Bradford Metropolitan City Council (1979), in the Court of Appeal, Lord Denning said “time bars are not to be enforced rigidly against a complainant where justice requires that the time be extended and his complaint heard”.

It may be reasonable to exercise discretion where:

  • the complainant was ill or through some other incapacity was unable to act in time
  • the complainant has not at any time allowed the matter to rest for more than a few months and not more than, say, three years have elapsed since the action complained of first occurred, or
  • the injustice seems very great.

Ignorance of the Ombudsman’s existence needs to be looked at carefully as the Ombudsman has been in existence for more than 25 years. A claim of such ignorance by a person advised by a law centre or solicitor would not normally be accepted.

Some complaints are “continuing” (eg a complaint about the continuing failure to take enforcement action for a breach of planning control) and it may be appropriate to exercise discretion for the earlier part so we can look at the whole period.

Where discretion is exercised, the investigator should record the reasons and specify the date from which the council’s actions will be investigated.

Complaints must usually be made in writing but section 26B(3) gives the Ombudsman discretion to accept a complaint that is not in writing. This can only be done on an individual basis.


Date Updated: 16/08/11