Essex County Council (18 000 037)

Category : Other Categories > Other

Decision : Not upheld

Decision date : 21 Dec 2018

The Ombudsman's final decision:

Summary: The Ombudsman decided to discontinue any further investigation of Mr C’s complaint against the Council. This is because he has not suffered any direct, personal injustice from the South East Local Enterprise Partnership’s decision to grant a local district council funding for the redevelopment of an airport.

The complaint

  1. Mr C complains the South East Local Enterprise Partnership (SELEP) failed to properly consider and investigate his submissions about a local district council providing it with inaccurate and misleading information in June 2016 in support of its application for £4.4 million Local Growth Fund for the Rochester Airport Phase 1 Project; as a result, the funding allows the district council to proceed with the project that will adversely affect his amenities.

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The Ombudsman’s role and powers

  1. 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
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or
  • it is unlikely we could add to any previous investigation by the Council, 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)
  1. 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)

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The South East Local Enterprise Partnership

  1. Local Enterprise Partnerships bring together businesses, councils and universities, for example, to form partnerships. They decide priorities for investments in roads, buildings, and facilities in an area. They have no formal legal identity.
  2. The SELEP operates as a section 101 committee. This provides a local authority may arrange for the discharge of any of its functions by a committee or sub-committee or an officer of the authority. (Local Government Act 1972)
  3. Public funding for Local Enterprise Partnership programmes is held and managed by a local authority as an ‘accountable body’. This requires the appointment of a section 151 officer (a responsible financial officer) who provides reassurance on the Local Enterprise Partnership’s activities and outlines the accountable body’s arrangements with it which it should have in place.
  4. Central government funding for Local Enterprise Partnerships is paid to nominated accountable bodies. In this complaint, Essex County Council (the Council) acts as the accountable body for SELEP. It has overall legal accountability for the SELEP investment programme. SELEP can award funding to projects meeting its objectives.
  5. The district council acts as the local accountable body for the airport project and is responsible for deciding planning applications about its development.

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How I considered this complaint

  1. I considered all the information provided by Mr C, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to both Mr C and the Council. I considered their responses.

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What I found

  1. The district council where Mr C lives adopted a master plan for the redevelopment of a local airport in 2014 which it owns. It developed a business plan and applied to SELEP for funding for its redevelopment in 2016. This was before it got planning consent for the redevelopment proposed. Mr C is unhappy with the district council’s business case proposal (the ‘project’).
  2. SELEP approved funding from the government’s Local Growth Fund in June 2016. It approved a £4.4 million award. It assessed the application against its Assurance Framework (2016) which sets out the factors the Accountability Board will take in to account when deciding allocations. The Accountability Board provides the accountable structure for decision making and approval of funding.
  3. In October, Mr C received a redacted copy of the district council’s business case.
  4. In April 2017, having obtained an unredacted copy of the district council’s business case, Mr C contacted SELEP with a list of concerns about the business case submitted by the district council. He wanted an assurance SELEP would not release funds to it. His concerns about the business case ranged from failing to say it had already applied for funding, to it providing misleading information.
  5. SELEP put Mr C’s concerns to the district council. When it received the district council’s comments, SELEP sent Mr C a letter with its own response. This explained it had considered the district council’s response and concluded nothing Mr C provided would have materially impacted on its previous decision.
  6. In September, Mr C addressed SELEP’s Accountability Board. The Board decided SELEP had already addressed his concerns. In response to other questions at the meeting, it noted it was for the district council to consider the safety of the project. SELEP looked at the project in terms of the criteria in the Assessment Framework.
  7. It also addressed a question about the claim the district council had already financially committed to the project before funding was agreed. It asked the district council about it. It replied saying it only committed funding through its own capital budget. No contractual commitment was given at the time it submitted the business case.
  8. In April 2018, the Accountability Board considered changes to the project and a progress report. This noted the district council had granted planning consent in 2017 for the erection of 2 hangers. It also applied for the replacement of a runway but later withdrew the application.
  9. In June, the district council provided an updated business case and there was a further assessment of the business case by SELEP’s independent technical evaluator.
  10. The district council made a further application for planning consent later in 2018 which it has yet to decide. This is for the demolition of the control tower and some other structures, and for the erection of a ‘new hub building’.
  11. A further £3.7 million was provisionally allocated to the second phase of the project but the Accountability Board has yet to consider it. It will only do so when it has considered further progress on the first phase and has a further review by the independent technical evaluator.
  12. In response to my enquiries, the Council confirmed it reviewed all accountability reports before publishing them. The decision by the Accountability Board was reviewed by the section 151 officer’s finance team and its own monitoring officer’s team. They were satisfied with compliance with the Assurance Framework.
  13. The Accountability Board relies on information provided by the district council about this project. It receives assurances through the district council’s own section 151 officer that the information provided in the business case is accurate and complete.

Analysis

  1. When SELEP approved the Local Growth Fund award in June 2016 for the first phase of the business case, Mr C had not raised his concerns about the proposal.
  2. Mr C’s response to my draft decision confirmed his complaint was about SELEP not investigating and independently deciding whether his allegation about the district council was correct. For the sake of clarity, and for the avoidance of doubt, I consider any complaint he might have wished to make about SELEP’s June 2016 is late and could not be investigated. This is due to the passage of time, and the fact Mr C was aware of this decision in 2016. Mr C received a redacted copy of the district council’s business case in October. This means he needed to send any concerns he had about the way SELEP reached its decision to the Ombudsman by October 2017. He complained to the Ombudsman in April 2018.
  3. I considered Mr C’s arguments in response to my draft about why his complaint would not be late. I am not persuaded and nor am I persuaded to exercise discretion to look at SELEP’s 2016 decision. While I accept he may not have received an unredacted copy of the document until early 2017, which prompted him to write to SELEP, he received the unredacted copy in October 2016. I consider the 12-month period for a late complaint started in October 2016 and not early 2017.This is because he was clearly unhappy enough with SELEP’s decision to pursue it for an unredacted copy. He could also have acted sooner, through the Information Commissioner’s Office for example, to get this information.
  4. When alerted to Mr C’s allegations, I am satisfied SELEP acted and responded to them. It sent them to the district council for comment. It considered the comments it received before sending its own response to Mr C.
  5. Having considered Mr C’s complaint further, I am not satisfied he suffered a significant injustice from SELEP’s response to his allegations even if there was fault.
  6. In reaching this conclusion, I note the following:
      1. The district council, not SELEP, has granted, or will grant, planning consent for the package of improvements proposed for the airport;
      2. Mr C will have, and had, the opportunity to make representations about any planning application for the site. This allowed, and will allow, him to explain the impact of the redevelopment on his amenities. The impact on his quality of life, his main injustice, flows from any decision by the district council to grant planning consent. I note the planning application to redevelop the site this year was submitted but has yet to be decided. This means Mr C suffers no direct injustice from the proposed redevelopment as it does not yet have consent;
      3. In an email sent to the Ombudsman in May 2018, Mr C noted his injustice was ‘specific to the continuation of funding by SELEP’ while knowing the local council had made a false declaration. He claimed this caused him a personal injustice in the form of ‘unequal treatment’. He also said it would be a personal insult if the district council could continue to lie and cheat to further its plans. I am not persuaded by his argument about injustice for the reasons set out above. Nor am I satisfied he was treated unequally by SELEP or the district council progressing with its plans amounts to a personal insult; and
      4. The business case with which he was unhappy was prepared and submitted by the district council. Mr C claims this contained fraudulent statements which helped it obtain the money. Fraud is a crime and crimes are investigated by the police, not the Ombudsman.

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Final decision

  1. The Ombudsman decided to discontinue the investigation of Mr C’s complaint against the Council. This is because of the lack of direct, personal injustice the claimed fault caused him.

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Investigator's decision on behalf of the Ombudsman

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