Summary: We cannot investigate this complaint against Sutton Council to end its housing duty and provide the complainant with accommodation. This is because the issues subject to his complaint have been, and are currently, subject to legal proceedings in court. He will also have a further right of appeal in County Court on the conclusion of these proceedings.

The complaint

1. The complainant (Mr W) is making a complaint about an alleged failure by Sutton Council to provide his family with accommodation in accordance with the Housing Act 1996 (the Act). He says this has breached his human rights, worsened his health and caused them to live in unreasonable housing conditions. As a desired outcome, he wants Sutton Council to provide him and his family with accommodation under the Act and provide him with compensation.

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The Ombudsman’s role and powers

2. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot 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).
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended).

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How I considered this complaint

4. I considered information provided by the complainant and the Council. I considered the Ombudsman’s Assessment Code.

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My assessment

5. The complainant and his family are residents of the London Borough of Lewisham and reside in accommodation provided by a social housing provider. Mr W and his family are facing eviction and so applied to Sutton Council for accommodation under the Act. He says Sutton Council has not provided accommodation in accordance with its legal duty under the Act. Sutton Council, at some stage, accepted a housing duty to provide accommodation. However, in 2023, Sutton Council ended this duty and Mr W commenced legal proceedings in County Court against that decision. The appeal was struck out by County Court due to this appeal not being made in accordance with the statutory appeals process. Mr W subsequently issued judicial review proceedings challenging both the decision of the Country Court and the decision of Sutton Council to end its housing duty.
6. In 2023, the High Court issued an order concerning Mr W’s judicial review proceedings. The order addressed specifically the issue of Mr W’s housing application to Sutton Council, as well as its housing duty. It said it could not detect any error of law or fact which undermines Sutton Council’s decision. In any event, the High Court outlined that there is an ongoing referral and arbitration process between both Sutton Council and Lewisham Council which will determine which local authority owes a housing duty to Mr W and his family. In addition, the High Court advised Mr W that he will have a statutory right of appeal at Country Court under the statutory appeals process should he disagree with the outcome of that decision. Sutton Council has since confirmed it is underway with judicial review proceedings against Lewisham Council in respect of this issue and process.
7. The initial proceedings brought by Mr W in County Court against Sutton Council were misconceived. However, the judicial review proceedings in the High Court were not and this expressly considered the substantive issues of his complaint to us. There is also currently judicial review proceedings between Sutton Council and Lewisham Council in respect of the issues brought to us by Mr W. We have no legal jurisdiction to investigate any matter subject to legal proceedings in a court of law. The restriction I outline at Paragraph 3 (above) therefore applies.
8. Further, Mr W will have able to challenge any future decision in Country Court about whether the Council owes a housing duty to him on conclusion of the ongoing referral and arbitration process referred to (above). Mr W has actively sought legal proceedings against Sutton Council and so I see no exceptional reason why it would be unreasonable for him to do on conclusion of that process. On that basis, the restriction I outline at Paragraph 4 (above) also applies.

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Final decision

9. We cannot by law investigate this complaint. This is because the issues raised by Mr W have been, and are currently, subject to legal proceedings in court. He will also have a further right of appeal in County Court.

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Investigator's decision on behalf of the Ombudsman