Summary: The Ombudsman will not investigate Mrs X’s complaint about the Council’s decision not to prosecute her former employer after she suffered an accident at work. The complaint is late, and the injustice claimed by Mrs X flows from the accident, not the Council’s decision not to prosecute. Also, it is unlikely an investigation would lead to a different outcome.

The complaint

1. Mrs X complains the Council refuses to prosecute her former employer after she suffered an accident at work.

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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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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
• the fault has not caused injustice to the person who complained
• it is unlikely we could add to any previous investigation by the Council
• it is unlikely further investigation will lead to a different outcome

(Local Government Act 1974, section 24A (6), as amended)

5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

6. I considered:
• information provided by Mrs X with her complaint form; and
• copies of her complaints to the Council and its responses

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What I found

7. Mrs X suffered an accident at work in March 2018. The Council was told about the accident and investigated the matter. It wrote to Mrs X in August 2019 confirming it would not be prosecuting her former employer and explained its reasons.
8. Mrs X complained to the Council about its decision in March 2020. The Council responded in April, reconfirming its decision not to prosecute. It told Mrs X that if she wanted to take her complaint further, she must do so within 28 days.
9. Mrs X did not ask the Council to reconsider her complaint until October 2020. The Council declined to deal with the complaint further as her request was over 100 days late and it would not change its decision not to prosecute her former employer. Mrs X complained to the Ombudsman.

Assessment

10. The accident at the heart of Mrs X’s complaint took place in 2018. The Council’s decision not to prosecute was made in August 2019. The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are good reasons to do so.
11. I do not consider that to be the case here. I see no reason Mrs X could not have complained to us much earlier. The exception at paragraph 2 therefore applies to her complaint and the Ombudsman does not intend to investigate. In reaching this decision I have considered the points below.
12. As explained in paragraphs 4 and 5, when the Ombudsman investigates, we look for fault causing injustice. Mrs X is clearly unhappy with the Council’s investigation into her accident and decision not to prosecute. But the Council only became involved after Mrs X’s was injured at work. Even if there were faults or flaws in the Council’s investigation, they will not have caused Mrs X any significant personal injustice. It is also unlikely we would question the professional judgment of the Council officers not to prosecute her former employer.
13. The injustice Mrs X claims flows from the accident she suffered, not the Council’s decision not to prosecute. So, even if the complaint were not late, an investigation by the Ombudsman would not be appropriate.

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Final decision

14. I will not investigate this complaint. The complaint is late and the Council’s decision not to prosecute has not caused the injustice claimed by Mrs X which flows from the accident, not the Council’s decision.

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Investigator's decision on behalf of the Ombudsman