Summary: Mr X complains about the Council’s alleged failure to properly accommodate a naturist swimming session in its new leisure centre. The Ombudsman does not propose to investigate Mr X’s complaint. This is because part of the complaint is late, and there is not enough evidence of fault by the Council to justify the Ombudsman’s involvement.

The complaint

1. The complainant, whom I shall call Mr X, represents Dover Naturist Swim (DNS). Mr X complains the Council has failed to properly consult with DNS, or to accommodate DNS at its new leisure centre at a reasonable time or affordable cost. Mr X says the Council is discriminating against naturists as users of the Council’s leisure facilities.

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The Ombudsman’s role and powers

2. 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)
3. 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
• it is unlikely further investigation will lead to a different outcome, 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)

4. 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)
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)

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How I considered this complaint

6. I considered Mr X’s complaint to the Ombudsman and the information he provided I also gave Mr X the opportunity to comment on a draft statement before reaching a final decision on his complaint.

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What I found

Background and complaint responses

7. Mr X represents Dover Naturist Swim (DNS) which has hired the swimming pool in a council owned leisure centre for around 40 years. The Council has recently opened a new leisure centre. Mr X has complained to the Council about the options available for DNS to use the new leisure centre. The Council has offered a time when DNS can use the pool, but it is late on a Sunday evening, and the cost to DNS is higher. Mr X says this will threaten the viability of DNS.
8. Mr X says the Council failed to properly consult with DNS, has not offered use of the facilities at a reasonable cost and time, and is discriminating against naturists.
9. In its responses to Mr X’s complaints the Council said:
• A public consultation took place in 2016 about the new leisure centre.
• The new leisure centre does not lend itself to internal screening and the Council does not accept the “workable solutions” put forward by DNS are suitable. Blinds cannot be attached to the mezzanine windows, and if erected within the fitness suite, they would not entirely restrict the view of the pool. The blinds would also not address the issue of users “inadvertently coming across naturist swimmers in the changing village or from the pool viewing area.”
• To section off the pool for use by DNS within existing opening hours would mean both pools and the changing village would have to be closed for at least one and a half hours for a one-hour booking. Given the high demand for the facilities and the problems with screening, this is not an option.
• While naturists are not troubled being seen, this must be “balanced with the rights of the remainder of the public”.
• A meeting took place on 30 July 2019 with DNS to discuss screening, hire costs, and programming. The Council had offered DNS use of the facility on a Sunday evening, after it had closed to the general public. If agreement could be reached, the Council would look to vary the relevant planning condition to enable “a private hire of the facility by DNS after the centre had closed to the general public.”
• There would be no cost to DNS for a variation of the planning conditions which would allow the leisure centre to be available for a private booking by DNS.
• DNS had said it was unhappy with the proposed hire cost. The Council explained the leisure facility is new, and costs have increased for all users.
• The Council had tried to find alternative venues for DNS, but all options were considered unsuitable by DNS.

Assessment

Consultation

10. Any concerns about the Council’s consultation regarding the new facilities are late. The Council consulted in 2016, and even if DNS were not contacted directly, the evidence I have seen shows a representative contacted the Council about the proposals.
11. The Ombudsman expects people to complain to us within 12 months of them becoming aware of a problem. If DNS had concerns about the consultation process, I see no reason they could not have contacted the Ombudsman much earlier.
12. Even if we were to consider this issue, we could never say greater engagement with DNS would have led to a different outcome. It seems unlikely the design of the leisure centre would have been changed, and the same issues would therefore apply. The Ombudsman will not therefore consider this part of the complaint.

Proposed arrangements

13. The role of the Ombudsman is to look for administrative fault. It is not our role to say how council facilities, such as leisure centres, should operate. These are decisions for council officers and elected members. We have no powers to question a council’s decision if there is no fault in how the decision itself was reached. We cannot question the professional judgment of council officers if their decisions can be justified.
14. It is clear Mr X is unhappy with the arrangements put forward by the Council for DNS. But it is for the Council to decide what facilities it will offer, and when, and how it makes them available to groups such as DNS. The Council has explained why it cannot accommodate DNS in its preferred way and has put forward alternative arrangements. I recognise Mr X disagrees with the Council’s decision, and that its proposals may cause issues to DNS. But this does not mean the Council’s proposals themselves are flawed – they are simply not what DNS would like. Based on the evidence I have seen, there is not enough evidence of fault in how the Council has acted, and in its decision-making processes, for the Ombudsman to become involved. An investigation is not therefore appropriate.
15. If Mr X thinks the Council is discriminating against naturists, then he could contact the Equality Advisory Support Service (EASS) for advice.

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Final decision

16. The Ombudsman will not investigate Mr X’s complaint. This is because part of the complaint is late, and there is not enough evidence of fault by the Council to justify the Ombudsman’s involvement.

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Investigator's decision on behalf of the Ombudsman