Summary: The Ombudsman will not investigate Mr B’s complaint about the Council’s response to the concerns he raised relating to the construction of a waste processing plant. This is because the Council is not responsible for construction at the site and the complaint falls outside our jurisdiction and there are no other grounds which warrant investigation.

The complaint

1. The complainant, who I refer to as Mr B, says the Council has failed to act upon issues he raised with it in connection with the construction of an upgraded waste processing facility. He says he raised issues relating to fraud, health and safety and his position as a whistle-blower, but the Council gave him a dishonest response and allowed him to lose his job working for a contractor at the site.

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The Ombudsman’s role and powers

2. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. In considering the complaint I reviewed the information provided by Mr B and the Council. I gave Mr B the opportunity to comment on my draft decision and considered what he said.

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What I found

5. Mr B was employed by a firm working on the construction of a waste recycling plant. He says he raised concerns with a borough council about work there and that this council passed his concerns on to the Council because the County Council holds a Public Finance Initiative contract with the waste company carrying out the upgrade works.
6. Mr B raised matters about fraud, health and safety and that he had lost his job and considered himself to be a whistle-blower entitled to protection under the law.
7. The Council responded to him and explained it does not have responsibility for construction at the site because it is owned by the waste company and the company is funding the works. It noted the principal contractor and sub-contractor working at the site, one of whom had employed Mr B. However, it said health and safety issues were for the Health and Safety Executive (HSE), fraud allegations were for the police and it referred Mr B back to his ex-employer because the Council could not recognise him as a whistle-blower under the Public Interest Disclosure Act 1998.
8. The Council confirmed it would be carrying out its own checks once the plant becomes fully operational but concluded that it did not have responsibility for the matters Mr B had raised and it could not act beyond its powers.

Assessment

9. As the Council does not have the responsibility or powers to address the concerns Mr B has raised, the complaint falls outside our jurisdiction and cannot be pursued.
10. It has told Mr B its position and advised him of the bodies to whom he can take his concerns.
11. Mr B says that the plant is being run at low capacity. However, the Council has said it will carry out its checks when it is fully operational. Mr B also says the Council did not refer him to the HSE initially. Whether this was the case or not, it has done so now and if Mr B wants to challenge the Council’s position that its whistleblowing policy does not apply to him, he can seek legal advice.

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Final decision

12. The Ombudsman cannot investigate this complaint. This is because the Council is not responsible for construction at the site and so the complaint falls outside our jurisdiction and there are no other grounds which warrant investigation.

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Investigator's decision on behalf of the Ombudsman