Summary: Ms X complains about the Council’s actions in relation to a lease for premises in her local park. The Ombudsman will not investigate the complaint because we are unlikely to find evidence of fault by the Council and the injustice caused to Ms X is insufficient to warrant an investigation.

The complaint

1. The complainant, who I refer to as Ms X, says the Council has failed to properly follow the terms of a lease it granted for premises in her local park. She says it has not taken appropriate action against breaches of the lease and it has not taken relevant facts into consideration in deciding whether the lease can be assigned. She says the Council is discriminating against her by not allowing people, other than those to whom it is proposed the lease will be assigned, from getting the lease.

Back to top

The Ombudsman’s role and powers

2. 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
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

Back to top

How I considered this complaint

3. In considering the complaint I spoke to Ms X and reviewed the information she and the Council provided. I gave Ms X the opportunity to comment on my draft decision and considered what she said.

Back to top

What I found

4. The Council granted a lease for premises it owns located within a local park which Ms X uses.
5. In the past, Ms X has complained to the Council about noise disturbance from some events which have been held at the premises. She made her last complaint about noise nuisance about a year ago and since this time the premises have been used very little due to colder months and the pandemic.
6. Some time ago the leaseholder appointed on-site managers to run the premises and the current situation is that they hope to have the lease assigned to them by the leaseholder.
7. Dissatisfied with the way the on-site managers have been operating, Ms X complained to the Council that there had been breaches of the lease which it was not enforcing.
8. In February 2020 the Council responded to Ms X’s complaint by explaining there were different procedures involved depending on whether the lease was to be surrendered or assigned and that it was open to the leaseholder to propose an assignment and an assignee. The Council said its role was to consider such a request, and as part of its consideration it would request a business plan from the proposed assignees. It confirmed that there had been no breach of the lease against which it would take legal action.
9. Ms X complained to the Ombudsman stating that as the company which had held the lease had been dissolved, this should have led to the termination of the lease. She said the fact that the on-site managers had previously illegally rented out parking behind the premises which the Council had to take action to stop, means they are not suitable to be future tenants.
10. In responding to my request for an update, the Council has advised the company that currently occupies the property on a lease still exists and that it has proposed to assign the lease. It has received a revised business plan from the proposed assignees which it will be reviewing shortly.

Assessment

11. The lease currently belongs to the original leaseholder and the Council will decide whether the assignee proposed to take it over is suitable or not. This is a decision for the Council to make and its merits are not open to review by the Ombudsman.
12. I have seen no evidence to suggest there has been fault in the Council’s handling of these matters. Moreover, the injustice Ms X claims is not at a level which would warrant a formal investigation by the Ombudsman.
13. In responding to my draft decision, Ms X disputes the Council’s view that the company concerned still exists. She has referred to information given by the Council about assignment and surrender of the lease and to a clause in the lease which states the leaseholder is not to assign it. She says the Council is not following its own procedures and that this warrants a formal investigation by the Ombudsman as she and other residents are suffering significant injustice because nobody is being given an opportunity to show interest in renting out the property and starting a business. However, the complaint is Ms X’s and she does not act on behalf of any other residents. I consider her injustice to be limited and as such her complaint does not warrant a formal investigation by the Ombudsman.

Back to top

Final decision

14. The Ombudsman will not investigate this complaint. This is because we are unlikely to find evidence of fault by the Council and the injustice caused to Ms X is insufficient to warrant an investigation.

Back to top

Investigator's decision on behalf of the Ombudsman