Summary: We will not investigate Mr X’s complaint concerning a Council building and his commercial tenancy. This is because the complaint matters lie outside of our remit, either subject to legal proceedings or more appropriately dealt with in court. And, because issues such as subject access requests, and alleged breaches of health and safety, are better addressed by more suitable agencies.

The complaint

1. Mr X says the Council’s Monitoring officer is refusing to discharge a reporting obligation under the Local Government and Housing Act 1985. Mr X also does not agree with the Council’s view of his legal position under the Public Interest Disclosure Act. Mr X considers there are multiple breaches of health and safety at a Council owned building where he rents a business unit.
2. Mr X also complains how business unit tenants are being held liable for service charges. He says the Council has failed to answer his subject access requests in a proper manner.

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The Ombudsman’s role and powers

3. 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 another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. 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)
5. We have the power to start an investigation into a complaint about actions the law allows us to investigate. We may decide not to start an investigation if we think the issues could reasonably be or have been mentioned as part of the legal proceedings regarding a closely related matter. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

8. To set the background, Mr X says he is representing several business ‘tenants’ in a Council owned building where he rents a workspace. He says he is raising serious health and safety concerns concerning the asbestos register in the building, fire safety and disability access.
9. From checking previous complaints Mr X has made to the Ombudsman, and from the Council’s recent response to us, (when we asked the Council to send us its complaints responses to Mr X), it seems Mr X is in the process of being evicted.
10. The Council says it found no evidence that Mr X is representing any other business unit apart from his own. The Council’s monitoring officer disagrees with Mr X on his interpretation whether a reporting obligation exists. The monitoring officer also disagrees with Mr X’s view that Mr X is acting as a whistleblower.
11. The Council wrote to Mr X formally to say it had investigated all his concerns raised about asbestos, fire safety, disability access plus eviction and service charges. It told Mr X it rejected his allegations. It does not consider he has a protected tenancy and says it is entitled to apply service charges.
12. The Council’s monitoring officer says they reached their decision after carrying out legal research and speaking to lawyers. And the officer says Mr X does not qualify as a whistleblower and says he is not being victimised. The Council concluded that Mr X was ‘making assertions in (voluminous) correspondence in order to establish’ ….his ‘position or to undermine the Council’s position’. It says it will not consider his complaint any further and asked him to seek legal advice.
13. We will not investigate. It seems Mr X has complained to us despite being apparently involved in legal action with the Council. We have no remit to consider the complaint matters he raises in connection with his commercial tenancy.
14. I consider the court bar applies even if Mr X is now raising a related matter not explicitly mentioned in his legal action with the Council. As I consider it would be reasonable for him to raise this as part of his current legal proceedings.
15. We are not a legal body, and it is not for us to make interpretations on differing legal positions. It is for the courts to make definitive legal judgement. Mr X’s complaint arises in connection with his dispute over commercial lease arrangements, tenancy rights and service charges. These are matters that are properly dealt with through legal proceedings (or any relevant regulatory bodies). It is reasonable to expect these issues to be considered by the courts.
16. Finally, if there are any separable issues concerning subject access requests, these are best addressed by the Office of the Information Commissioner as the regulator for information rights matters. Similarly, the Health and Safety Executive is best placed to investigate any health and safety breaches by the Council.

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Final decision

17. We will not investigate because Mr X’s complaint matters, concerning his commercial tenancy and the Council’s building, lie outside of our remit, either subject to legal proceedings or more appropriately dealt with in court. And, because issues such as subject access requests, and alleged breaches of health and safety, are better addressed by more suitable agencies.

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Investigator's decision on behalf of the Ombudsman