Summary: The Ombudsman will not investigate Ms P’s complaint about the way the Council manages a Multi Use Sports Area. There is no sign of fault by the Council and therefore the Ombudsman may not question the merits of its decisions. Neither can the Ombudsman provide an interpretation of a disputed clause in a legal agreement.

The complaint

1. The complainant, whom I shall call Ms P, complains about the way the Council manages her local recreation ground and, in particular, controls the use of a multi-use sports area (MUSA).

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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 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 or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

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

3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

4. I have considered information supplied by Ms P. I have also looked at the Community Use Agreement (CUA) which sets out how the MUSA should be used.
5. I have considered Ms P’s comments on my draft decision.

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What I found

Background

6. A few years ago, the Council redeveloped a park close to Ms P’s home. The redevelopment was controversial because the recreational facilities were not only for community use but were also to be used by a local expanding primary school.
7. Sport England at the time expressed concern that community use would be compromised and asked that, as a condition of approval, a CUA should be put in place. This was done but has not completely resolved the concerns of some users of the recreation ground. The terms of the CUA have been subject to juridical review – although on a different point to the one raised by Ms P.
8. As part of the redevelopment, existing tennis courts were replaced by a MUSA. Three courts are marked out on the area.

The complaint

9. Ms P complains about:
1. The restricted hours available for tennis players to book the MUSA during the week, particularly during the winter months and
2. The removal of the nets from one or two of the courts during winter which again restricts access for tennis players.
10. Under the CUA, the school has use of the MUSA on weekdays in term-time between 8 in the morning and 5 in the evening. However, in Winter and Spring (the periods about which Ms P has expressed most concern) it is available to members of the public between 9 and 10 in the morning and some afternoons between 3:45 and 5.
11. Ms P says that this makes it very difficult for anyone to play tennis on weekdays during the winter as early morning frost has often not gone by 9 and it is already getting dark when the afternoon session begins.
12. Ms P complains that the weekend sessions are also difficult because the removal of nets over winter means that there is pressure on the courts. She says that until recently only one court has been out of action because of this but that now another net has been removed meaning that tennis players are restricted to one court at weekends only for a period of several months. She says she is not aware of significant numbers of other people using the area over this period.
13. Ms P says that she believes that this is contrary to the CAU which makes the Council responsible for “the presence and condition of tennis nets” and says that should the school need to remove the nets to allow an alternative sporting activity, they are expected to leave the MUSA as they found it “including the erection of nets where appropriate”. She says that this clearly means that nets will only ever be removed when necessary, not for long periods, and then only if replaced immediately. She does not believe the clause is capable of a different interpretation.
14. The Council does not agree. It says that the clause in question means that if nets are in place, they need to be replaced if temporarily removed for a different activity: it does not imply that nets will be permanently in place. It points out that its interpretation is shared by the two signatories to the agreement: the Council and the School. It says, further, that the nets “clearly fetter” the use of the MUSA for other activities such as kickabout football. It points out that Winter is the low-season for tennis.

Assessment

15. There are clearly going to be competing priorities when an area is used by different groups. I can understand why the tennis players might feel squeezed. However, the Council has to balance the interests of the various groups involved: the school, the tennis players, members of other groups, casual users etc. The fact that not everyone agrees with the outcome of its consideration is not evidence in itself of fault.
16. The Council drew up the CUA in conjunction with the school and with, I understand, input from Sport England. The two signatories have a common understanding of what it means and, in my view, the Ombudsman is not best placed to challenge the interpretation of its own agreement with a body which also agrees with its interpretation. It may be that the CUA is not well drafted but I have seen nothing to suggest that the Council has not properly considered the issue and, as such, the Ombudsman has no grounds to challenge the merits of the decision it has reached.
17. Although Ms P believes that the disputed clause is clear and unequivocal in its meaning, I do not agree and I consider that the courts rather than the Ombudsman is the only body able to resolve this dispute.

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Final decision

18. I have decided that the Ombudsman should not investigate this complaint. This is because there is no sign of fault on the part of the Council which would allow the Ombudsman to question the merits of its decisions. The Ombudsman cannot provide an interpretation of a disputed clause in a legal agreement.

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Investigator's decision on behalf of the Ombudsman