Summary: We cannot investigate Mr X’s complaint about the Council’s decision to issue him a financial penalty. This is because he has appealed to the Tribunal and there is no worthwhile outcome achievable by our investigation.

The complaint

1. Mr X complains about the Council's decision to issue him financial penalty for an alleged failure to license under the Council’s Selective Licensing Scheme. He complains of errors in the process leading up to the issue of the penalty, including failing to respond to his complaints and attempted contacts and issuing letters to the wrong address.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We also cannot investigate a cannot investigate a complaint if someone has appealed to a tribunal about the same matter. This is because in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Property Chamber) handles appeals against civil penalties issued by local authorities in England for housing offenses, such as failing to hold a mandatory or selective property license.
6. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

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How I considered this complaint

7. I considered information provided by Mr X.
8. I also considered the Ombudsman’s Assessment Code and the Council’s Regulation and Enforcement Policy.

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My assessment

9. Selective licensing schemes require landlords of privately rented properties in designated areas to obtain a licence. Local authorities have powers under the Housing Act 2004 to enforce licensing requirements, including issuing penalties for breaches such as a failure to licence a property.
10. Before issuing a penalty, a council must serve a notice of intent. The landlord then has 28 days to make representations. If the council decides to proceed, it must then issue a final notice. A landlord can appeal that final notice to the First‑tier Tribunal, which can confirm, change, or cancel the penalty.
11. Mr X has appealed the financial penalty to the Tribunal. Therefore, we cannot investigate this complaint, even if the appeal does not provide a complete remedy for all the injustice claimed. Only the Tribunal can vary or cancel the financial penalty, which is the substantive injustice Mr X complains of. Investigating any alleged errors in the process leading up to the penalty is unlikely to achieve a worthwhile outcome for him or remedy the substantive injustice, therefore I will not investigate this complaint.

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Final decision

12. We cannot investigate Mr X’s complaint because he has appealed to the Tribunal and there is no worthwhile outcome achievable by our investigation.

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Investigator's decision on behalf of the Ombudsman