Decision : Closed after initial enquiries
Decision date : 21 Mar 2017
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate this complaint about the way the Council dealt with a local resident regarding three properties he owned. This is mainly because we have already considered part of the complaint, and complaints about other matters have been made late. In addition there is no sign of fault by the Council which has caused a significant injustice to the complainant regarding its recent involvement in his case.
- The complainant, who I shall call Mr X, complained about the way the Council had dealt with him regarding three properties he owned. In particular Mr X complained the Council:
- unreasonably decided to enforce a demolition order in respect of one property (‘House A’) in 2007 when renovation would have been cheaper and more appropriate,
- charged an unreasonably high amount for the demolition works,
- damaged the foundations of his two neighbouring properties (‘House B’ & ‘House C’) during the demolition,
- unreasonably threatened to obtain Compulsory Purchase Orders (CPO’s) regarding Houses B & C, and
- did not carry out a proper review of his complaint at the final stage of its complaints procedure.
The Ombudsman’s role and powers
- 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 an investigation if, for example, 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. (Local Government Act 1974, section 24A(6), as amended)
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. In particular we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D)
- The law also 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)
How I considered this complaint
- I considered the information Mr X and his solicitor (“Mr Y”) provided about his complaint. I also took account of Mr X’s previous complaint to us. In addition I considered information from the Council about Mr X’s case, and its complaint correspondence with Mr Y. I also gave Mr Y an opportunity to comment on a draft of this decision before I reached a final view.
What I found
- Mr X owned three adjoining properties in the Council’s area. In 2006 the Council started legal action against Mr X as it considered one of the properties, House A, was a dangerous structure. This action culminated in the Council obtaining a court order to demolish House A in 2007.
- Mr X was opposed to demolition and attempted to persuade the Council this was unjustified and renovation was a viable alternative option. But negotiations broke down and the Council decided to enforce the court order.
- In 2007 Mr X complained to the Ombudsman about this matter. But in November 2007 we decided to discontinue our investigation of his complaint on the basis there was insufficient evidence of fault by the Council.
- As the Council was not satisfied Mr X had complied with the court order, it arranged for House A to be demolished around 2008. This included rebuilding the wall between House A and House B. The Council billed Mr X for the cost of these works. But he refused to pay complaining the costs were excessive. The Council then obtained a legal charge on Mr X’s property for the amount he owed.
- Following Mr X’s further representations about this matter, the Council considered his case at a cabinet meeting in 2010. The cabinet agreed to reduce the costs to a limited extent, but it endorsed the substantive amount of the debt. The cabinet also agreed not to enforce the legal charge for the time being.
- Mr X and his representatives continued to make representations to the Council in relation to his properties at times over the succeeding years.
- The Council also later approached Mr X about the condition and use of Houses B & C, which had been empty for a long period. In May 2016 the Council wrote to Mr X saying it may consider seeking CPO’s in respect of the properties. In August Mr Y made a formal complaint to the Council about this matter and the previous events in Mr X’s case, but he was not satisfied with its response.
- Mr Y complained about the Council’s decision to pursue the demolition of House A rather than allow Mr X to renovate it. In particular he said the Council unreasonably disregarded strong evidence to support the case for renovation.
- But Mr X previously complained to the Ombudsman in 2007about the same matter. We do not pursue matters we have already addressed in a previous complaint investigation unless there is significant new information which warrants reconsideration.
- Mr Y suggested new information had come to light which warranted a fresh look at the complaint. In particular he said the Council’s decision to demolish rather than allow renovation was shown to be unreasonable on financial grounds when the full cost of the demolition, remedial works and resultant damage to Houses B & C later became known.
- But I am not convinced this gives reason to re-investigate any matters in Mr X’s case. In particular we have already considered the Council’s actions in 2007 in the light of the information available to it at the time. Furthermore I do not see we could reasonably find at this stage that it should have taken account of costs and alleged damage issues which were unknown at the time, and that it would necessarily have made a different decision about proceeding with a demolition even if it had known about these matters. As a result I consider Mr X’s complaint about events in 2007 is invalid and should not be considered any further.
- In addition Mr X evidently knew about the Council’s charge for the demolition works by 2008, and it seems he raised issues with it about possible damage to Houses B & C not long after those works were done. But normally we will only pursue complaints made within 12 months of the time the complainant became aware of the issue in question.
- Mr Y asserted there had been an ongoing process of negotiation between Mr X and the Council from 2007 to 2016, so he could not reasonably have complained again to the Ombudsman before now. But I am not convinced by this view. In particular, I have not seen evidence of any continuous chain of negotiations over the past nine years. Furthermore Mr Y also acknowledged himself that Mr X had delayed in pursuing matters at times.
- In addition I do not see the fact that the Council considered historic issues in addressing Mr Y’s recent complaint means we should also look at these matters again now. I consider the issues Mr Y complained about relating to the demolition, damage to Mr X’s properties and resulting costs, are all issues Mr X was aware of at least by 2010. In the circumstances I consider the jurisdictional restriction referred to in paragraph 3 applies to these aspects of his complaint.
- I also see no good reason for us to exercise discretion and investigate these matters now despite the restriction. In particular, I consider it unlikely we would be able to conduct a fair and meaningful investigation now about events which happened around ten years ago, especially given that memories will have dimmed, some of the parties involved at the time may no longer be contactable, and relevant records may not have been retained.
- Furthermore Mr X is effectively claiming the Council was negligent in the way it carried out works to his properties. But negligence is ultimately a matter for the courts to consider and rule on. The Ombudsman is not a substitute for the courts, and we do not have the expertise or remit to decide about this issue. So even if we were to exercise discretion on time grounds, I consider this aspect of Mr X’s complaint would also fall outside our jurisdiction as it is reasonable to expect him to have pursued this matter through the courts.
- Mr X complained about the Council’s more recent interest in Houses B & C, and the suggestion it may acquire them from him using CPO’s. But the letter in question, which asks Mr X to carry out minor works to Houses B & C, refers to various options open to the Council regarding empty properties and makes no specific threat to seek CPO’s in his case.
- Mr Y contended that Mr X nevertheless suffered an injustice due to this issue because of the resulting stress he experienced which has affected his physical health. But I am not convinced this is reason for us to pursue this part of this complaint.
- In particular we may only investigate complaints where fault by the Council has caused a significant personal injustice. But I do not see we are in a position to criticise the Council for referring to the use of CPO’s as one of its options in the circumstances, or for communicating this to Mr X. In addition, even if there was some fault on by the Council in this respect, I consider the injustice to Mr X is limited given it has not actually pursued CPO’s in his case.
- Mr Y also complained that the Council’s final stage review of his complaint was inadequate and not independent. But I am not convinced there is reason to fault the Council on this basis.
- The Chief Executive’s letter is brief and effectively just endorses the views already expressed in earlier complaint responses. But I do not see we could justifiably conclude from this that he failed to review matters in Mr X’s case. I am also not convinced it would be reasonable to criticise the Chief Executive for relying on the previous responses, given these had already addressed the complaint issues in some depth.
- In addition, we normally consider there is no justification for using our resources to pursue a subsidiary complaint about the Council’s complaints procedure where we are not investigating the substantive issues in the complaint.
- The Ombudsman will not investigate Mr X’s complaint about the way the Council has dealt with issues relating to empty properties he owned. This is mainly because we have considered part of the complaint previously and he has complained late about other matters. In addition there is no sign that fault by the Council regarding its recent involvement in his case has caused Mr X an injustice to warrant our involvement.
Investigator's decision on behalf of the Ombudsman