Summary: We cannot investigate Mrs X’s complaint that the Council submitted an incomplete licence document for a House in Multiple Occupation (HMO) she owns, to deliberately mislead her First Tier Tribunal appeal hearing against Civil Penalty Notices (CPNs) served on her by the Council. The licence document formed part of an appeal heard by a judge, which means we cannot investigate. Mrs X’s use of her Tribunal appeal right also means we cannot investigate any matters relating to the HMO, including documents submitted to be considered at the appeal.

The complaint

1. Mrs X complains:
1. a Council officer submitted an incomplete licence document for a House in Multiple Occupation (HMO) she owns, to deliberately mislead her First Tier Tribunal appeal hearing;
2. the Council delayed its investigation of her complaint.

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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 a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
4. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
5. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)

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How I considered this complaint

6. I considered information provided by the Mrs X, which included the Council’s final response letter, and the Ombudsman’s Assessment Code.

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My assessment

7. The Council served Civil Penalty Notices (CPNs) on Mrs X. The allegations were that there was a failure to license an HMO, and management regulation offences. Mrs X appealed against the CPNs at the First Tier Tribunal, which was due to be heard earlier in 2021. Mrs X believes the Council intentionally sought to mislead the Tribunal through one of the documents it submitted to the Tribunal as evidence, the HMO licence it issued in 2020.
8. The First Tier Tribunal hearing is the equivalent of a court of law for the purposes of our jurisdiction. It is presided over by a judge and is part of the series of courts available to someone to challenge a CPN decision. We cannot investigate Mrs X’s complaint about the contents or accuracy of the HMO licence because it has been put before the Tribunal as part of her appeal. That appeal process considered all evidence from Mrs X and the Council, including the HMO document. It was for the Tribunal judge to assess the evidence submitted by the parties in Mrs X’s CPN appeal, and make their decision. We cannot investigate any part of that appeal process, nor alter its outcome.
9. The First Tier Tribunal appeal would not have considered Mrs X’s allegations about the Council officers’ conduct in creating and submitting the document she considers to be incomplete and misleading. However, the courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. The relevant case is R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916. The principle set down in this judgement applies to situations where a complainant has used a formal right of appeal through court proceedings, including a Tribunal appeal presided over by a judge. This limitation on our jurisdiction applies even if the appeal did not or could not provide a complete remedy for all the injustice claimed. So we cannot investigate the Council’s involvement in the HMO matter prior to the Tribunal hearing, because Mrs X’s use of her formal Tribunal appeal right takes the core issue outside our jurisdiction.
10. Mrs X also complains about the Council’s delay in its complaint process. We will not look at a council complaint procedure in isolation where we cannot consider the substantive issues giving rise to the complaint. It is not a good use of public resources for us to do so. This limitation applies here, so we will not investigate this part of the complaint.

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Final decision

11. We will not investigate Mrs X’s complaint because:
• Mrs X has used her First Tier Tribunal appeal right, which means we cannot investigate all matters relating to the HMO, including the document submitted during the appeal which she says was incorrect;
• we will not investigate a council’s complaint handling process in isolation where we cannot investigate the matters which gave rise to the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman