Summary: The Ombudsman cannot investigate Mr X’s complaint, about the Council’s actions leading to its refusal to renew his private hire driver’s license. Mr X has appealed to the magistrate’s court against the Councils decision. The Ombudsman cannot investigate where someone has used their right to appeal.

The complaint

1. Mr X complains the Council refuses to consider his complaint about an incident involving a civil enforcement officer, which led to its decision not to renew his licence.

Back to top

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 a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
4. The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))

Back to top

How I considered this complaint

5. I considered the information provided by Mr X and the Council. Mr X commented on the draft version of this decision.

Back to top

What I found

6. Mr X held a private hire driver’s licence. In January, he received a penalty charge notice (PCN) for parking his cab on yellow lines in front of a dropped kerb.
7. He asked the civil enforcement officer (CEO) not to issue the PCN as he had only stopped outside his neighbour’s house while he used the toilet. The CEO issued the PCN.
8. Mr X says the officer made a rude gesture when he tried to photograph her car. And he says she drove her car at him. The police attended but took no further action.
9. The CEO reported the incident to the Council.
10. Mr X had been issued with a temporary license for 2 months while the Council awaited the results of a Disclosure and Barring Service (DBS) check. He applied to the Council to renew the license.
11. In March the Council’s Public Safety and protection Committee considered Mr X’s renewal application. The incident involving the CEO was discussed at length. The
12. Committee heard evidence from the applicant, his legal representative, a witness, Council officers and the police community support officer.
13. Having considered the evidence, the Council decided not to renew his license.
14. Mr X appealed to the magistrate’s court against the Council’s decision. In July, the court found in his favour and Mr X’s private driver’s license was renewed.
15. Mr X complained to the Council about the actions of the CEO during the incident in January. The Council refused to consider his complaint. It told him while the court had accepted evidence which resulted in the reinstatement of his licence, it had not found evidence to disprove the CEO’s claim that Mr X had been abusive to her. The Council refused to take further action.
16. Mr X complained to the Ombudsman. He says the Council should pay him for loss of earnings as he could not work while his license was suspended. He also wants compensation for the debt he says he accrued during this time and the ill health caused to him by stress.

Assessment

17. The law does not allow me to investigate a complaint if a right of appeal to a court has been used. Mr X appealed to the magistrate’s court against the refusal to renew his license. The law is s26(6) of the Local Government Act 1974, as amended. This says:

“A Local Commissioner shall not conduct an investigation under this Part of this Act in respect of any of the following matters, that is to say, —

(c)any action in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law:

18. The meaning and extent of this bar to our jurisdiction has been explored in court on several occasions. Lord Wolfe said in ex parte Croydon Borough Council “…the general tenor of s26(6) is that, if there is a tribunal (whether it be an appeal tribunal, a minister of the Crown or a court of law) which is specifically designed to deal with the issue, that is the body to whom the complaint should normally resort”.
19. Ex parte H (1999) was about special educational needs but the principles apply to Mr X’s situation. H’s mother had used a remedy by way of proceedings in a court of law. The case involved matters which could not be remedied by the court proceedings: the complainant came to the Ombudsman to address these. Mr Justice Turner said:

“…Where a party has ventilated a grievance by means of judicial review it was not contemplated that they should enjoy an alternative, let alone an additional right by way of complaint to a Local Government Commissioner [Ombudsman]. It follows that the Commissioner was correct when he concluded that he had no jurisdiction to investigate the Applicant’s complaint, and this application must be dismissed.”

20. I understand that Mr X is complaining about the officer’s actions during the incident. However, the case outlined at paragraphs 16 and 17, and others provide a clear line of court decisions which confirms the Ombudsman has no jurisdiction to pursue Mr X’s complaint.

Back to top

Final decision

21. I cannot investigate this complaint about events leading to the Council’s refusal to renew Mr X’s license. This is because Mr X has used his right to appeal to the magistrate court and the law precludes the Ombudsman from investigating matters related to a matter already dealt with by the Court.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman