Dorset Council (20 001 204)

Category : Environment and regulation > Licensing

Decision : Upheld

Decision date : 09 Feb 2021

The Ombudsman's final decision:

Summary: There was fault by the Council in its handling of a park home site licence, because of a single potential licence breach which it did not properly follow up. This has caused an injustice to the complainants, which it has agreed to remedy. However, there is no evidence of fault in the other numerous issues raised by the complainants about site licensing. The Council was also at fault for wrongly telling the complainants it had not identified any breaches of the site licence, but this did not cause a significant injustice.

The complaint

  1. The complainants, to whom I will refer as Mr and Mrs D, complain about the Council’s handling of licensing issues for the park home site where they live. They say the Council has failed to take effective action to address breaches of the licensing requirements by the site owner, in particular those relating to parking spaces and separation distances between units.

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The Ombudsman’s role and powers

  1. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
  3. 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)

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How I considered this complaint

  1. I reviewed:
  • a selection of Mr and Mrs D’s correspondence with the Council;
  • a detailed chronology provided by the Council; and
  • a copy of the site licences, compliance notes and other associated paperwork.

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What I found

  1. For several reasons, the licensing of the site in question has been complex. There has also been a very significant volume of correspondence between Mr and Mrs D and the Council. For the sake of clarity, the following chronology gives only an overview of the key events here; it is not intended to explain everything which has happened.
  2. The site in question was historically a caravan park. In 2016, the site owner applied for Certificates of Lawful Use (CLU) for its use as a park home site instead. This was complicated by the fact that, at that time, the site straddled two different local authority areas – those of Weymouth and Portland Borough Council and of West Dorset District Council.
  3. In May 2017, Weymouth and Portland Borough Council granted the requested CLU for its part of the site.
  4. In November 2018, the site owner sent a licensing application form (to which local authority is not clear from the evidence I have). The local authority identified omissions from the application form, relating to the size and layout of the proposed site. In response, the owner explained West Dorset District Council had refused the CLU application for its part of the site, and they were appealing this decision. For this reason, they were not currently proposing any park homes for that part of the site.
  5. The local authority sent a draft licence to the owner on 13 November. On 29 November, the owner sent a site plan, showing ten proposed park homes and the location of other site facilities.
  6. On 2 January 2019, the local authority conducted an initial site visit for orientation. The Council says it noted the proposed site plan did not correlate with the hardstanding which had been laid on site.
  7. On 3 January, the local authority issued a second draft licence authorising 15 units.
  8. On 1 April, several former local authorities were amalgamated to form Dorset Council. The site now fell into a single local authority area.
  9. The Council says it chased the site owner for an update on the site plan in May, but received no response. On 3 June, the Planning Inspectorate allowed the site owner’s appeal about the CLU, with no conditions attached.
  10. After further discussion with the site owner, the Council formally issued a site licence in August 2019, for a site of 17 park homes, in accordance with the CLU.
  11. In January and February 2020, Mr and Mrs D began contacting the Council. They raised several issues, in particular that their park home had been completed without parking space for two cars, as had been advertised, and that the neighbouring unit’s parking space encroached on the required separation distance between their homes. They also said they and the neighbouring unit had directly-facing habitable rooms, meaning a loss of privacy.
  12. After some discussion, the Council sent Mr and Mrs D a copy of the up-to-date site plan. In response, Mr and Mrs D sent a copy of the plan they had been given when purchasing their home. The Council noted it appeared there were discrepancies between these.
  13. Mr and Mrs D also made a complaint to Trading Standards at this time. The Council’s notes say Trading Standards had explained it could not assist Mr and Mrs D.
  14. The Council spoke to the site owner on 13 February, and explained it had received Mr and Mrs D’s complaint about parking. In a subsequent email exchange, it asked for clarification whether the site plan had changed. The site owner said it would provide a revised site plan, but commented there was sufficient parking space on site as “most units” had two spaces, and there was additional space in the site’s turning circles.
  15. The Council inspected the site on 3 March.
  16. On 13 March, Mr and Mrs D submitted a formal complaint to the Council. They said the site owner had allocated their proper parking spaces to the neighbouring unit. Although there was a small area of hardstanding to the front of their home, this was inadequate for parking a car, and there was also no space for visitors to park. They also said there were no footpaths on the site.
  17. Mr and Mrs D complained this should all have been apparent when the Council visited the site in January 2019, and could have been avoided if the Council had taken action at that point. They said there had been no “follow-up” with the site owner after the visit of January 2019. They also complained they had been passed between different departments since first contacting the Council in January 2020
  18. The Council replied on 27 March. It explained its visit to the site in January 2019 was for “orientation” only. It was not a formal inspection, as the site was still under development, and much of what the Council would need to inspect – such as roads and drainage – was not yet in place. Contrary to Mr and Mrs D’s belief, it was not apparent there was any issue relating to their home at that point, and in any case, the purpose of the Council’s visit was not to address issues with individual plots.
  19. The Council went on to explain, as the site was still subject to a planning appeal at that time, there was no licence issued at that time. Further to this, as the site owner was applying for a CLU, there was no requirement for them to submit plans for the Council’s approval.
  20. The Council said it did not have a duty to ensure each home on the site had private parking. The Model Standard Conditions for park home sites, which the Council follows, say that sites should provide suitable surfaced places for residents and their visitors parking. The Council noted Mr and Mrs D had one parking space, and there was space elsewhere on the site for any visitors to park. However, if they had been sold their site on the basis it would have parking facilities, which it did not, this was a private matter between them and the vendor. The Council noted Mr and Mrs D had said they were taking legal action.
  21. The Council explained the site licence had been issued in August 2019, before which there were no licence conditions for it to enforce. It said the site remained under development, and that it continued to work with the site owner. The Council also said, in its view, there was currently no breach of the licence conditions on the site.
  22. The Council rejected the claim it had not followed-up with the site owner after the visit in January 2019, and said it had continuously engaged with the owner, both before and after Mr and Mrs D had contacted the Council. It acknowledged Mr and Mrs D had contacted both Trading Standards and the Council’s Housing Standards, and understood their frustration that Trading Standards could not assist. However, the Council again said it was satisfied the Housing Standards officer dealing with the case had remained in contact with Mr and Mrs D, and provided timely responses to their correspondence.
  23. The Council did not uphold Mr and Mrs D’s complaint. It explained they could submit a request for a Stage 2 complaint, if they remained dissatisfied. The Council would consider if further investigation was warranted, and if it decided not, would advise they refer the complaint to the Ombudsman.
  24. After further correspondence with Mr and Mrs D, the Council advised they should refer their complaint to the Ombudsman. The Council reiterated this advice in a further email on 1 June, but Mr and Mrs D continued to keep up a lengthy email exchange with the Council. During this exchange, they raised additional issues, such as the site’s fire risk assessment, their civil case against the owner, and an accident Mr D had had due to the layout of their plot.
  25. The Council undertook a formal site inspection on 22 June.
  26. Mr and Mrs D referred their complaint to the Ombudsman on 8 July.
  27. On 24 September, the Council reissued the site licence. This was because the site owner had previously provided an incorrect name for the owner’s company.
  28. On 1 October, the Council served three compliance notices on the site owner. The notices concerned breaches of the licence with respect to the position of visitor parking spaces, which were too close to one park home and, when in use, would block access to two others; the position of the visitor spaces would reduce available road-width, and there were no safe communal parking spaces on the site; and that one park home was too close to the road. None of the homes in question was Mr and Mrs D’s.
  29. The Council says the site owner appealed against the compliance notices to the Residential Property Tribunal. The owner also submitted further evidence to the Council, including a fire risk assessment, and video showing cars moving around the site, and also had parking spaces marked out.
  30. The Council revisited the site alongside officers from Dorset Fire & Rescue Service. On the basis of the evidence gathered through the visit, and the lack of objection from the Fire & Rescue Service, it agreed to withdraw the compliance notices.
  31. The Council says it has separately established that six of the park homes on site were within six metres of each other, in apparent breach of the licence conditions. However, the site owner then provided evidence the homes were Class 1 Fire Resisting, which, under the condition, would allow the separation distance to be reduced to 5.25m, with which all homes were complaint.
  32. The Council also says it consulted with site residents in September 2020 about the separation distances. The general consensus from residents was that they were not concerned about the minor loss of amenity arising from the separation distances. The Council decided it was not appropriate to take enforcement action, as this would entail a disproportionate amount of work and disruption for the owner and residents. It wrote to all residents to confirm this decision.
  33. The Council says it has identified several other minor licensing issues, including the lack of a public noticeboard, and a failure to display certain required documents. However, it says it has chosen to approach these matters informally, and that is working with the site owner to ensure compliance.

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Background

Park home site licensing

  1. Owners of residential park home sites in England require a licence from the local council to operate. The licence will usually have conditions attached.
  2. The Mobile Homes Act 2013 gave local authorities more effective control of conditions on park home sites. It introduced new powers of enforcement against breaches of site licence conditions.
  3. Government guidance says councils should take a staged approach to enforcement. In the first instance, councils should take an informal approach. Formal action should normally be a last resort and should only be considered in the most serious and urgent cases when the informal process has failed to achieve the necessary outcome, within reasonable timescales.

Certificate of lawfulness of established use or development (CLEUD)

  1. It is possible to seek formal confirmation from councils that an existing or proposed development or use of land is lawful and so needs no planning permission. If the Council accepts the evidence provided, it can issue a certificate of lawful use to the applicant.
  2. This may happen where:
    • the Council has already granted planning permission for the use or development;
    • a development is ‘permitted development’ and so deemed acceptable because it complies with limits in regulations; or
    • the development was unlawful, but the time limit for enforcement actions has now passed.
  3. A CLEUD may also be known as a ‘Certificate of Lawful Use’ (CLU) or a ‘Lawful Development Certificate’ (LDC). I have used ‘CLU’ in this statement, because this is name used by the Council in its paperwork.

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Analysis

  1. I will turn to Mr and Mrs D’s substantive points of complaint shortly.
  2. First, though, I must discuss an overriding issue. Mr and Mrs D have stated, in their correspondence with me, they consider the Council has a duty to ‘safeguard’ the interests of park homeowners, through the site licensing regime, and they complain the Council has failed to do this.
  3. This is not correct. The purpose of the site licensing regime is to ensure a general maintenance of standards in park home sites. It is not to protect the consumer rights of individual homeowners, and is not a route of redress for a person who considers they have been mis-sold a park home. This is an entirely private contractual matter between the seller and buyer, as it would be in the case of a more conventional home, and the Council has no power to intervene.
  4. In the course of their correspondence with the Council, Mr and Mrs D have raised several different issues about the site. However, only some of these featured in their formal complaint to the Council, which they raised across two emails to the Council, of 27 February and 13 March 2020 respectively. To summarise these points:
  • their property was advertised as having space to park two cars at the side. However, the site owner then changed the layout, so their parking space now became part of the adjacent park home plot instead. They now have only a single, very restricted parking space directly at the front of their home, which is not suitable;
  • this arrangement also means the neighbour’s cars, when parked, are within 3m of their home;
  • their home and the neighbour’s have directly-facing habitable rooms;
  • there are no footpaths on the site; and
  • they had been ‘passed between’ different Council departments.
  1. The Council first visited the site in January 2019. Mr and Mrs D say the Council should have identified the issues with their site then, and served compliance notices at that point.
  2. However, I consider this complaint misguided for several reasons. First, as the Council has explained, this visit was for orientation only. The site was still very much under development, and it could not undertake any kind of formal inspection at that point.
  3. Second, and regardless of this, the Council had issued no licence at that point anyway. This being the case, there were no conditions for it to enforce on the site owner, and therefore no basis on which to serve a compliance notice. The site does not have, or need, planning permission, as it has a CLU, and so there was also no scope under the Council’s planning powers to enforce how the site was laid out.
  4. Mr and Mrs D first contacted the Council in January 2020. In March, the Council responded to their complaint. With regard to their parking situation, the Council explained there was no formal standard for it to apply with regard to individual parking provision, but noted they had been provided with a parking space at the front of their property.
  5. The site licence states, under the heading “Communal Vehicular Parking”:

Suitably surfaced parking spaces shall be provided to meet the requirements of residents and their visitors.

  1. The licence does not require the site owner to provide individual parking spaces for each home, nor that spaces should be of a particular size or placement. The licence simply requires that adequate parking be provided on the site.
  2. The Council did in fact serve compliance notices on the site owner with respect to the placement of visitor parking spaces. However, these were due to spaces being too close to one home (not Mr and Mrs D’s), and also out of concern they blocked the road around the site. After further inspection, the Council decided to withdraw these notices.
  3. But none of this related to the private parking provision for any individual home. As there is no requirement in the licence for this, there is no scope for the Council to take enforcement action with respect to the parking provision for Mr and Mrs D’s home.
  4. This matter is, instead, a question of whether Mr and Mrs D were mis-sold their home. Again, this is a private matter between them and the seller.
  5. I note Mr and Mrs D have approached the Residential Property Tribunal with this complaint. This appears to be the appropriate forum for addressing this issue.
  6. Mr and Mrs D have also complained their home and the neighbouring one have directly-facing habitable rooms. However, I cannot see anything in the licence which prevents this arrangement.
  7. The licence does require homes to be separated by 6m. This can be reduced to 5.25m, where the homes have been fitted with cladding, and where they are considered adequately fire resistant.
  8. The Council also identified this element of the licence had been breached in some cases on the site. However, the site owner then provided evidence the homes are of the appropriate fire resistance rating to allow for the smaller separation distance. The Council also says it consulted with residents, and, drawing these together, concluded the loss of amenity by the reduction in the separation distance was not significant enough to warrant enforcement action. This is a decision the Council was entitled to take.
  9. I note Mr and Mrs D says the separation distance for their property is only approximately 1m. This appears to be because they have measured the distance from their home to the edge of the (disputed) parking space, which is now part of the neighbouring plot. But the licence states the 6m separation requirement applies to the distance between the “caravan[s]”. To my reading, this means the distance between the park homes themselves, not the distance between plots. There is no evidence Mr and Mrs D’s home and the neighbouring one is closer than the (reduced) minimum of 5.25m allowed by the licence.
  10. Mr and Mrs D also complain about what they see as a lack of footpaths on the site.
  11. The licence states:

Every caravan shall be connected to a road by a footpath with a hard surface which shall be maintained in good condition.

  1. The photos I have seen of Mr and Mrs D’s home, show clearly there is a footpath running from the front door to the nearby road. The site plan also shows similar arrangements laid out for the other homes on the site. There does not appear to be any evidence this element of the licence has been breached.
  2. I do note the Council does not appear to have addressed this issue in its response to their complaint. While it would have been better if it had, given there appears to be no substantive issue for the Council to have explored here, I do not consider this is a significant point, and I will not find fault on this basis.
  3. Mr and Mrs D also complain they have been passed between Council departments.
  4. It is not entirely clear what they mean by this, but from what I can gather, this refers to the fact they approached both the Council’s Housing Standards department (which deals with the site licensing), and its Trading Standards, as part of their complaint about mis-selling. Trading Standards then advised Mr and Mrs D it could not assist them.
  5. I have no more information about their approach to Trading Standards than this, and so I cannot comment on its response. Either way, I do not consider this means Mr and Mrs D were ‘passed between’ Council departments – there were two different departments which were potentially relevant to their complaint, for different reasons. They approached each, but one explained it could not help. This appears entirely reasonable.
  6. So I am satisfied there is no fault in how the Council has addressed these elements. However, there are two points on which I must criticise the Council.
  7. First, as I have said, the crux of Mr and Mrs D’s complaint is that the site owner changed the layout of their plot, to give the neighbouring home what was meant to be their parking space. The apparent mis-selling this represents is, in itself, a private matter.
  8. But one of the consequences of this arrangement is that, when the parking space is in use, the neighbour’s cars end up parked very close to Mr and Mrs D’s property. Mr and Mrs D have provided photographic evidence of this.
  9. Another element of the site licence says:

“Private cars may be parked within the separation distance provided that they do not obstruct entrances to caravans or access around them and they are a minimum of 3 metres from an adjacent caravan.” [emphasis mine]

  1. My reading of this is that, although it is acceptable for a resident to park within 3m of their own home, their car(s) must be at least 3m from any neighbouring – i.e. adjacent – home. I cannot take a conclusive measurement from the photos Mr and Mrs D have provided, but it certainly appears this minimum distance requirement may be breached when the neighbour’s cars are parked. The Council did not address this point in its response to Mr and Mrs D’s complaint, despite the fact they specifically raised it.
  2. I do note the Council mentioned this as a possible licence breach in a letter to the site owner’s agent, dated 9 April 2020 (i.e. after its response to Mr and Mrs D’s complaint). There is, however, nothing else I can find to show what then came of this matter.
  3. It is clear the Council registered this as a potential issue, and so I cannot find fault for that reason, but equally, it has given me no indication it followed the matter up properly; and, either way, it is also a point which should have been covered in its complaint response. Taking this together, I must find fault here.
  4. For similar reasons, it is difficult for me to make a conclusive finding this has caused Mr and Mrs D an injustice. As I have said, I cannot substantiate this is a licence breach, and I note the Council said itself, in the letter of 9 April, it had also not verified it. Even if it is a breach, it remains for the Council to decide whether it should take action to enforce it, so it is too speculative to say this fault has caused a material difference to Mr and Mrs D’s situation.
  5. But Mr and Mrs D were entitled for this point to be addressed by the Council in its response to their complaint, and so I am satisfied this, at least, has caused them an injustice.
  6. The Council addressed this point in response to my draft decision. It accepted it had not properly followed up the ‘3m separation distance’ issue, and said it would revisit it now. However, it explained there is a potential jurisdictional conflict with Mr and Mrs D’s Tribunal application, which could impact on its ability to remedy this. I will discuss this point further at the end of my decision statement.
  7. Second, and on a related point, I note the Council’s response to Mr and Mrs D’s complaint says, at that time, it did not consider there was evidence of any licence breaches. However, the Council’s letter of 9 April to the site owner lists several issues which it describes as possible licence breaches. It also explains the Council observed these possible breaches during its visit to the site on 3 March – several weeks before its letter to Mr and Mrs D.
  8. It is not clear why the Council told Mr and Mrs D it had no evidence of any breaches at this point, when it seems clear it had. I accept this may simply have been an error, but I again find fault on this point.
  9. However, and while I acknowledge this comment caused Mr and Mrs D some distress, I do not consider this represents a significant injustice. The fact remains the Council did recognise there were several potential licence breaches on the site, and (with the exception of the ‘3m separation distance’ issue) I am satisfied it has taken appropriate steps to address them. So there is no reason to think this comment made any material difference to the situation.

Other issues Mr and Mrs D have raised

  1. As I have said, there has been a very significant volume of correspondence between Mr and Mrs D and the Council here. Mr and Mrs D have also emailed me numerous times since the beginning of my investigation. In the course of this correspondence, they have a raised a range of issues about the site, but only those discussed in the previous section formed part of their formal complaint to the Council.
  2. The other issues they have raised are, therefore, premature for the Ombudsman to investigate. However, I have given some consideration to these issues anyway, for the sake of expediency, and it is my view none of them could represent a significant fault, or injustice, to Mr and Mrs D, for the reasons I will now set out.
  3. Mr and Mrs D say the site owner has erected a low wall near the entrance to their home, which restricts the space for them to move in and out of it. This caused Mr D to have an accident, because he tripped and fell over the wall.
  4. They also complain metal railings have been erected, which wrap around the front and opposite side of their home, and mean they cannot manoeuvre a mobility scooter or their bins because of the narrow footpath this has created.
  5. The wall appears to have been erected for the purpose of separating Mr and Mrs D’s property from the neighbouring home’s parking space (the space which Mr and Mrs D consider should have been theirs). The purpose of the railings is less clear, although it appears possible it is for safety, as there is a drop on the other side of the railings which could potentially cause injury.
  6. Whatever the reason for their erection, the wall and railings are again matters for Mr and Mrs D to take up with the site management. They are private homeowners; the Council is not their landlord, and there is no element of the licence which would give it the power to pursue this as a possible enforcement issue.
  7. Mr and Mrs D say the site owner began selling homes on the site before obtaining a licence.
  8. The Council has commented on this in its response to my enquiries. It says:

“Due to the planning status of the site, which relies on Certificates of Lawful Use (with no conditions attached) there has been no recourse in planning law to control the layout or placement of bases on the site. This is because there are no conditions attached to the existing CLU permissions. Furthermore, in relation to a site licence itself, that only has legal force once the site becomes occupied and once it is granted. The Council therefore had no means of regulating the development of the site prior to occupation and only then after a site licence was issued. The issuing of the licence was delayed by the ongoing planning appeals which were only resolved formerly on the 3rd June 2019.

“Mobile Homes were subsequently sold by the site owner whilst the site was being developed and whilst these planning appeals were being resolved when no site licence existed.”

  1. It is therefore clear the Council was aware the owner had begun selling homes on the site before being granted a licence. However, I am also satisfied the Council was working with the owner at this time, to allow a licence to be issued, and so I consider it an oversimplification to say the site was simply unlicensed.
  2. Either way, and to reiterate my earlier point, the onus is on a prospective homebuyer to complete the appropriate checks before committing to a purchase. I do not know whether Mr and Mrs D were aware the site had no licence when they bought their home, but this could have been checked quite simply on the Council’s website.
  3. Moreover, I cannot see how this fact, in isolation, represents an injustice to them. Even if the Council had issued a licence before they purchased their home, there is no obvious reason why this would then have prevented the problems they have experienced. With the potential exception of the ‘3m separation distance’ issue, the problems they have raised about their home do not engage the Council’s powers anyway.
  4. Mr and Mrs D also complain the site owner had not obtained a fire risk assessment for the site when it began operating.
  5. I will again quote from the Council’s letter to me:

“After repeated requests from the Council, a site plan was submitted by the owner on 22nd July 2019. The Council issued the site licence under the [Caravan Sites and Control of Development Act 1960] on 21st August 2019 having consulted on the draft licence and conditions as per best practice guidance.

“Prior to that point several site plans had been received by the Council but rejected as they did not reflect the layout of the development on the ground. In addition, other information such as the location of fire safety equipment, fire risk assessment, drainage, other services, position of walls and bases were gradually made available to the Council as the site was developed.” [emphasis mine]

  1. It is the duty of Dorset Fire & Rescue Service to enforce the legislation surrounding fire risk assessments, not the Council. The Council’s power here is in enforcing the site licence, which requires only that the fire risk assessment is available for inspection; this is a different consideration, although, evidently, if the site owner had failed to carry out the assessment, it would be impossible to comply with this element of the licence.
  2. However, again, it is clear the Council was aware of this issue during the ‘pre-licensing’ period, and it says the owner submitted the risk assessment after it issued the compliance notices (although the lack of the risk assessment was not the reason for these notices). So I am satisfied there is now a fire risk assessment for the site.
  3. This being the case, I do not consider there is anything for the Ombudsman to pursue here. Even if we could say the Council should have acted more robustly, there is no ongoing issue to resolve, and I do not consider a historical failure to display the fire risk assessment represents a significant injustice to Mr and Mrs D.

Agreed action

  1. The Council has accepted it was at fault with respect to the ‘3m separation distance’ issue. It has agreed it should now take action to remedy this; however, the Council says it is concerned it may be unable to comply with a remedy within a set timescale. This is because Mr and Mrs D’s Tribunal application is ongoing and touches on the same issues.
  2. I have limited information about the details of Mr and Mrs D’s Tribunal application. But I appreciate there is a potential crossover between some of the licensing aspects of this dispute, which are a matter for the Council, and the private aspects, which are a matter for the Tribunal, and that this could affect the Council’s ability to complete a remedy.
  3. I have therefore not set a target date for this agreed action.
  4. The Council has agreed to pursue the ‘3m separation distance’ issue with the site management, and make a formal decision about whether to enforce this aspect of the licence. It will also write to Mr and Mrs D to keep them informed of its progress and relevant decisions.

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Final decision

  1. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman

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