Summary: The Ombudsman cannot investigate Mr X’s complaint about the Council’s decision to serve him with a Noise Abatement Notice. Mr X had a right of appeal against the Notice to the Magistrates’ court, which he used. The Ombudsman cannot investigate if someone has appealed to a court about a matter.

The complaint

1. Mr X complains the Council incorrectly served a Noise Abatement Notice (‘the Notice’) on him in 2018.
2. Mr X says the matter caused him and his wife unnecessary distress and anxiety. He says he has spent about £1,500 in solicitor and court fees.
3. Mr X wants the Council to:
• apologise;
• pay him £1,500 and give him further compensation;
• remove all records of the Notice; and
• change its processes to prevent a similar event happening again.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

6. As part of my assessment I have:
• considered the complaint and the documents provided by Mr X;
• issued a draft decision, inviting Mr X to reply.

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What I found

7. When a council serves a Noise Abatement Notice, this grants the person served a right of appeal to the Magistrates court against that Notice. I note Mr X says the Council sought to persuade him not to use that appeal right. But Mr X subsequently appealed to court against the Council’s Notice. He says the Council received his defence bundle and withdrew the Notice, so he dropped the case.
8. The Council has provided a letter from Mr X’s legal representatives, as sent to the Magistrates court in January 2019. The letter indicates the case had a court listing date for when it was due to be heard. The letter informed the court that Mr and Mrs X withdrew their appeals, and ‘do not make a claim for costs’ against the Council.
9. The Ombudsman cannot investigate Mr X’s complaint. This is because he started an appeal at court about the matter, so the Ombudsman has no jurisdiction to investigate.
10. Mr X quotes the Local Government Act, section 26(6)(c) which states the Ombudsman cannot investigate ‘any action in respect of which the person affected has or had a remedy by way of proceedings in any court of law’. He says this does not apply to him because ‘the case never went to court … [the case] did not proceed therefore there could not have been any remedy by way of proceedings in any court of law’.
11. But as the wording of section (26)(6)(c) states, it applies where someone ‘has or had a remedy by way of proceedings in any court of law’ [my emphasis added]. For this section to be engaged, it is not necessary for a complainant to complete the court proceedings. The limitation on the Ombudsman’s jurisdiction applies as soon as a complainant has started court action on the matter complained of. This happened here because the case was listed for a hearing at the Magistrates court and Mr X’s papers had been served on the Council.
12. Mr X’s legal representative withdrew the appeal. When doing so, they also stated they had ended any claim for costs against the Council. The route for Mr X to get the financial outcome he now seeks from the Ombudsman was for him to have proceeded with that claim at court. The Ombudsman cannot now replace the previous role of the court to consider Mr X’s grievances and provide him with this outcome.

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Final decision

13. The Ombudsman cannot investigate this complaint. This is because Mr X used his appeal rights against the Council’s Noise Abatement Notice.

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Investigator's decision on behalf of the Ombudsman