Decision : Upheld
Decision date : 06 Jan 2017
The Ombudsman's final decision:
Summary: The Council is at fault as it has delayed in completing its investigation into Mrs X’s business and in making a decision on what action it should take. As a result Mrs X has been caused significant uncertainty which the Council has agreed to remedy as recommended.
- Mrs X has complained that the Council is delaying in progressing its trading standards investigation into her business and in making a decision on whether to prosecute her.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. She 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, she may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
How I considered this complaint
- I have:
- considered the complaint and the information provided by Mrs X’s representative;
- discussed the issues with Mrs X’s representative;
- made enquiries of the Council and considered the information provided;
- invited Mrs X’s representative and the Council to comment on the draft decision.
What I found
- Mrs X ran a business selling vehicles. In 2009 the Council received a complaint that Mrs X’s business was mis-selling the vehicles. Mrs X has said she tried to resolve the complaint before the complainant reported it to the Council. The Council’s Trading Standards unit commenced an investigation into the complaint. The Council carried out investigations and inspected some of the vehicles which had been sold. In 2011 the Council obtained a warrant and searched Mrs X’s business premises. It seized four vehicles and parts. These were examined by the Council and further investigation was undertaken.
- In 2012 the Council invited Mrs X and others involved to an interview under the Police and Criminal Evidence Act 1984 (PACE). Mrs X declined to attend. Mrs X’s representative has said this was because she was unwell and her solicitor had requested an alternative appointment which was not forthcoming. The Council also requested assistance from the DVLA and requested a witness statement. The Council obtained this statement in January 2014.
- Mrs X complained to the Council about the delay in completing the investigation. The Council responded in July 2015. It advised that its investigation had been completed and it had referred the matter to its senior management and legal team to decide what action, if any, should be taken.
- In January 2016 the Council held a case conference with its legal services to decide on what action to take. The Council has said the legal service intended to provide an opinion in writing. To date, this has not been provided so the Council has not reached a decision on what action, if any, to take.
- In response to my enquiries, the Council has said the investigation was one of the most complex it had undertaken. It considers the investigating officer was, at times, overwhelmed by the amount of evidence. The Council acknowledges that the investigating officer’s line manager should have intervened earlier to make the investigation more manageable. The Council has said the investigation was also delayed by the time taken by the DVLA to provide a written statement and legal services not providing its written advice.
- Mrs X’s representative has said that the delay in the investigation has caused Mrs X anxiety. She is also concerned that the seized vehicles will have deteriorated and she would like them to be returned.
- The Council’s investigation into Mrs X’s business has taken five years to complete. I am mindful of the complexity of the investigation and the time taken by the DVLA to provide a statement. I have also taken account of the Council’s position that the investigating officer’s line manager should have intervened to make the investigation more manageable. On balance, I consider the investigation was not properly managed and it has taken too long to complete. This is fault.
- The Council has not yet reached a decision on what action, if any, it will take against Mrs X. It is now 18 months since the Council completed its investigation. The Council took some five months to arrange a case conference to decide what action to take. The Council’s legal service has not provided its written advice some 11 months after the case conference. I understand this is preventing a decision from being made. This is fault.
- As a result of the delays by the Council, Mrs X has suffered uncertainty over a prolonged period as she has not known if the Council will or will not take action against her. The Council should remedy this significant injustice.
- It is possible that the Council’s delay could have deprived Mrs X of her assets for longer than necessary. But I cannot know if this is the case as it is dependent on the Council’s decision on whether it should take any action against Mrs X and the outcome of any such action.
- That the Council:
- makes a payment of £500 to Mrs X to acknowledge the uncertainty caused to her by the Council’s delays in completing the investigation into her business and in reaching a decision on what action, if any, to take.
- makes a decision on what action, if any, to take against Mrs X and notifies her of the Council’s decision in writing. The Council should take this action within two months of my final decision on the complaint.
- The Council is at fault as it has delayed in completing its investigation into Mrs X’s business and in making a decision on what action it should take. As a result Mrs X has been caused significant uncertainty which the Council has agreed to remedy as recommended.
Investigator's decision on behalf of the Ombudsman