Summary: We will not investigate Mrs X’s complaint about the Council’s decision not to sell land it owns in front of her house for her to install a vehicle driveway, and it not disclosing some documents to her. The complaint is late and there is no good reason for us to investigate now. Even if the complaint had been in time, there is not enough evidence of fault by the Council to have warranted us investigating. The disclosure of documents issue is a matter for the Information Commissioner’s Office.

The complaint

1. Mrs X is disabled and lives in a house with an area of grass between her front boundary and the highway. She complains the Council:
1. unfairly refused to sell or lease her the land so she can install a vehicle driveway on to her property from the road;
2. was prejudicial and discriminatory against her when making its decision;
3. failed to provide information she requested.
2. Mrs X says she has been denied the opportunity to install a vehicle access to her property. She says she may have to use a wheelchair in future because of her disability and currently has to park across the street. Mrs X wants the Council to allow her the right to use the land for a driveway.

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The Ombudsman’s role and powers

3. 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, as amended)
4. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• there is another body better placed to consider the complaint.

(Local Government Act 1974, section 24A(6))

5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. The Information Commissioner's Office (ICO) considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the ICO.

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How I considered this complaint

7. I considered information from Mrs X, online maps and street images, and the Ombudsman’s Assessment Code.

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My assessment

8. The Council first considered Mrs X’s request to buy the land for use as a driveway in 2019. Officers put the request before the Council’s ‘LEDA’ panel in August 2019. The Council refused Mrs X’s request on 9 September 2019. Mrs X sought support from a local Councillor in 2022 who contacted the Council on her behalf, and had her own further contacts with officers. She first complained to the Council in April 2023 and then to us in May. We expect people to bring their complaint to us about something they think a council has done wrong within 12 months of their becoming aware of the matter. Mrs X has known about the Council’s decision to refuse her request and the reasons for its decision for over three and a half years. Therefore the complaint is late.
9. We may decide to exercise our discretion to investigate a late complaint if there is good reason to do so. Mrs X did not pursue her concern until 2022, at which point she approached a Councillor. By the time she did so, her complaint about the Council’s decision on her land request would already have been about two years old. Mrs X could have brought her complaint to us about the Council’s decision in time. There is no good reason for us to investigate this late complaint now.
10. Even if the complaint had been in time, we would not have investigated. We cannot criticise a council’s decision solely because someone disagrees with it. We can only go behind a council’s decision if there has been fault in its decision‑making process and but for that fault the outcome would have been different. It is not itself fault for a council to decide not to sell an asset it owns to someone. But as a public body, it should have a process to make those decisions and follow it.
11. There is not enough evidence of fault in the Council’s decision‑making process here to have warranted us investigating. The Council followed its usual process to consider Mrs X’s request. It referred the request to its multi-department ‘LEDA’ panel of officers. Panel members gave their views and some raised objections which resulted in the Council refusing the request. Mrs X has stated the Council discriminated against her when making its decision. The Council made its decision for various reasons, none of which were related to Mrs X’s protected characteristics, including disability. The Council explained its reasons to Mrs X. I realise Mrs X disagrees with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.
12. Mrs X says she would lease the land from the Council instead of buying it. But the Council’s decision makes clear it is the proposed use of the land as a vehicle driveway which resulted in the refusal to sell the land. Leasing the land instead of selling it would result in the same refusal issues than if it were sold to Mrs X.
13. Mrs X has sought disclosure of documents relating to previous use of the land by a utility provider. She considers the Council treated her differently from the utility company when refusing her request for the land. The Council says the past use of an existing narrow path on the land by the utility provider did not include vehicular access, so is not comparable to the private driveway Mrs X is seeking. It has not disclosed the documents because it does not consider they are covered by its duties under General Data Protection Regulation (GDPR). If Mrs X disagrees, she may wish to pursue this issue with the ICO. Where we receive complaints about freedom of information, we normally expect the person to take the matter to the ICO. It is reasonable for Mrs X to do this because the ICO is the body specifically created by national government to consider data disclosure issues. This means it is best placed to consider whether the Council has breached or complied with the relevant data laws and guidance. If Mrs X disagrees with the ICO’s decision, she would also have formal rights to appeal to the First Tier Tribunal (Information Rights).

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Final decision

14. We will not investigate Mrs X’s complaint because:
• the complaint is late and there is no good reason to exercise discretion and investigate it now; and
• even if the complaint had been in time, there is not enough evidence of fault in the Council’s decision-making process to have warranted an investigation; and
• it is reasonable for her to take the issue of the Council not disclosing some documents to her to the ICO.

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Investigator's decision on behalf of the Ombudsman