Summary: A man complained that the Council had deceived him and the Ombudsman in its response to a complaint he made in 2017, by withholding relevant documents. But the Ombudsman will not investigate the complaint as it is unlikely we would find fault with the Council or that we could achieve a worthwhile outcome.

The complaint

1. The complainant, who I shall call Mr B, complained that the Council misled him and the Ombudsman in its responses to a complaint he made in 2017. Mr B’s complaint at that time was about the public consultation process the Council carried out when it transferred ownership of its housing stock to a Housing Trust around 2000. But Mr B said new information had come to light which indicated the Council had not provided all of the relevant documents it held about the transfer in 2017.

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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 provide a free service, but must use public money carefully. We may decide not to start an investigation if, for example, we believe:

• it is unlikely we would find fault, or

• there is another body better placed to consider the complaint, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I considered the information Mr B provided with his complaint, his comments when we spoke on the telephone, and his further comments in response to a draft version of this decision. I also took account of the Council’s response to my enquiries in Mr B’s case.

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What I found

4. In 2017 Mr B complained to us that the Council had not properly consulted with local residents when deciding to transfer ownership of its housing stock to a Housing Trust around 2000.
5. The Council provided some of the papers relating to the transfer in its responses to Mr B’s Freedom of Information Act 2000 (FOIA) request and our enquiries about this matter. But the Council said it could not find records of other documents, including about the consultation process, and it was likely these papers had been destroyed at some point.
6. In the circumstances we decided we could not justify starting an investigation of Mr B’s complaint. This was because it was unlikely we would find sufficient existing documentary evidence to show the Council was at fault in the way it consulted with residents at the time of the transfer. In addition we concluded we would not be able to carry out a fair or meaningful investigation at that stage about events which took place around 2000.
7. Mr B complained to us again after recently obtaining a copy of the Council’s Draft Transfer Agreement with the Trust in 2000. The Draft Agreement refers to an annex containing the formal consultation document circulated to tenants before the transfer. Mr B felt this showed the Council must have held the full documents at the time it responded to his FOIA request and our enquiries. Therefore he suggested the Council was deceitful in the information it provided in 2017.

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Analysis

8. In response to my enquiries the Council confirmed it had searched its archives and deed store before replying to Mr B’s FOIA request in 2017. The Council also said it had now carried out a further search of its files and documents, but it could still not find the annexes to the Transfer Agreement. The Council added that it was still reasonable to conclude the annexes have been disposed of.
9. In the circumstances I do not see we could justify using our resources to pursue Mr B’s complaint. In particular I am not convinced there is sufficient sign the Council has been deceitful or deliberately withheld information in Mr B’s case, or that an investigation is likely to uncover evidence of fault in this regard.
10. Mr B remains concerned about the legality of the stock transfer and the consultation process at the time. But I see no reason to differ from the conclusions we reached about his previous complaint regarding this matter. In particular I do not see we could carry out a fair investigation now or achieve any meaningful outcome in respect of events which happened and decisions that were made around 20 years ago.
11. In addition, if Mr B feels the Council did not respond properly to his FOIA request in 2017, or it has unreasonably lost or destroyed important documents, I suggest it would be appropriate for him to approach the Information Commissioner’s Office (ICO). This is because the ICO has specific powers to investigate alleged breaches of the FOIA, so they appear to be better placed to deal with this matter.

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Final Decision

12. The Ombudsman will not investigate Mr B’s complaint that the Council deceived him and us in its responses regarding a complaint he made in 2017 by not providing all the relevant information it held about the issue in question. This is because it is unlikely we would find evidence of fault by the Council or that we could achieve a meaningful outcome regarding this matter.

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Investigator's decision on behalf of the Ombudsman