Summary: I have seen no evidence of fault causing a personal injustice to the complainant in how the Council manages a park it owns.

The complaint

1. Ms X complains about the way the Council is running a park. She complains that:

1. In 2014 the Council held a flawed consultation on the future of the park.
2. In 2015 the Council had a poor contract with a company operating in the park, did not put a survey undertaken by a resident’s group on its website; and, did not respond to her partner for 3 months.
3. In 2016 closed a golf course in the park; gave wrong information to an external funder; and, gave the lease on a community building to a company without proper marketing. She also complains in 2016 someone connected to the Council “trolled” her online.
4. The Council is now poorly managing the park and carrying out regeneration improperly.
5. The Council did not deal properly with her corporate complaint or her attempts to “whistleblow”

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What I have investigated

2. I have not investigated complaints a, b and c. I give my reasons for this at the end of this statement.

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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. 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)

5. 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)
6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

7. I considered the information provided by Ms X and obtained relevant documents from the Council’s website. I wrote to Ms X with my initial views and invited her comments.
8. I wrote to Ms X and the Council with a draft of this decision and gave them an opportunity to comment.

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What I found

9. Ms X holds one officer responsible for what happens in the park and her unhappiness with this. The Ombudsman does not hold any officer individually accountable for the Council’s action; we hold the Council corporately accountable.
10. The Council has two teams of officers dealing with the Park. The Project Team dealing with the regeneration and the Management Team dealing with the day to day running of the Park and events in it.

Day to day management

11. Ms X says the Council did not give her a copy of the public liability insurance certificate held by a company who had a mountain bike event in the park. She says the Council also refused to show her the risk assessment for the event or say how much the company paid to hire the park. She says the Council told her to seek this information though a “freedom of information” request. She considers this an abuse of the legislation.
12. A company does not have to display a public liability insurance certificate. If the company did not want the Council to give Ms X a copy of the certificate, risk assessment and hire fee, the Council could not disclose these. What the company might have paid and the contents of its insurance and risk assessment did not cause a personal injustice to Ms X.
13. The Council’s advice to try to get these through a freedom of information request, is the correct approach. If the Council then refused her request, Ms X could appeal to the Information Commissioner. The Information Commissioner is better placed to help as only it can say if a council must disclose information.
14. Ms X says the Council favours an out-of-borough resident because it has a pro-bike agenda. Ms X says the bike event “desecrated” the park. Although Ms X disagrees with bike events in the park, the Council owns and manages it. The Council is not at fault for allowing bike events. It is entitled to decide which events it will allow in the park.
15. Ms X says the Council encouraged a resident and children to erect illegal BMX jumps in the park. The Council says it did not. It says it told the group it needed planning permission. It says when it discovered the group had started building the jumps it stopped them. The Council has resolved the issue and it did not cause Ms X a personal injustice. Further investigation of what happened would not achieve any worthwhile result.
16. Ms X says the Council did not take proper safety precautions when chipping felled trees. The Council says it did. The work has finished and I cannot now see what safety precautions the Council had in place. I can see no personal injustice to Ms X from how the Council chipped felled trees.
17. Ms X says a lack of proper planning for an event held by the leaseholders of a building in the park led to traffic problems. The Council agrees the event caused traffic problems but says the company did not tell it about the event. The Council says it has learned lessons from what happened to prevent recurrence. Further investigation by me would not improve this outcome. I also consider Ms X did not suffer any personal injustice.
18. The Council is considering allowing people to use a lake in the park it is constructing for open water swimming. Ms X says the Council has not done a risk assessment for this. The lake is not finished and the Council has not made a decision on its use. It is too early for the Ombudsman to consider a complaint about this.

Regeneration

19. Ms X says the Council felled 400 mature trees and replaced them with about 8,000 “whips”. I have seen the Council’s committee report and minutes from 2017 when it considered a planning application for the park. This application included the work to remove some trees and plant others. The Council considered consultation responses, including those from residents. It decided to approve the application. I have seen no evidence of fault in the way the Council made its decision.
20. Ms X says in 2018 the Council gave the landscape contract for the park to a company it previously employed to carry out a usage survey. A company can make a bid for more than one contract with the Council. It is not fault by a council to give more than one contract to the same company. Ms X did not bid for the contract so the Council’s choice of contractor did not cause her a personal injustice.
21. Ms X says the Council wrongly excluded the public from the committee meeting when it discussed the award of the landscape contract. This is not fault. All councils exclude the public from discussions on the award of contracts. This is because the discussions and paper work contain confidential and financially sensitive company information.
22. Ms X says at the committee meeting officers gave wrong information to the Mayor about the company. She says officers said the company had existed for longer than it has and had done more water projects than was true. I have checked information about the company. The company chosen by the Council is long established and has over time merged with other companies. It has delivered many landscape projects, including some which are very high profile. I have seen no evidence officers misled the Mayor about the status of the company.
23. In February 2018 Ms X asked Council officers to a meeting in the park. The Council refused this. It said this was because of previous angry encounters. Often the Council will agree to meetings with residents, but it has no duty to agree to “ad-hoc” meetings with residents. The Council has a duty of care to its staff. If it considers a meeting would put staff at risk of verbal attacks, it can legitimately turn down an invitation to a meeting.

Ms X’s complaint to the Council

24. The Council’s whistleblowing policy says:

“Anyone with a complaint about Council services is encouraged to contact the manager directly responsible for that service or the relevant Executive Director. In most cases where there is concern this avenue will be the first point of reference”.

“The manager will treat the complaint seriously, investigate it promptly and inform the complainant of the outcome. The investigation officer will be expected to interview both the individual raising the complaint and the person complained against, as well as any other individuals as appropriate. If no further action is proposed, the complainant will be given an explanation. If further action is proposed under a separate Council procedure (such as the disciplinary code) the complainant will also be informed”.

“Alternatively, the whistleblower may have used those channels but still feel that there is real cause for concern. In such circumstances the whistleblower may refer their concern to the Head of Law directly. The Head of Law will then ensure that the matter is dealt by her either personally or by a whistleblowing officer nominated by her and operating under her supervision. Acting under the supervision of the Head of Law the whistleblowing officer will first receive and record the complaint in a register kept specially for the purpose. An initial assessment will then be made to decide what sort of investigation ought to take. Unless the issue is raised anonymously then the whistleblowing officer will generally interview the whistleblower as part of this initial assessment.”

25. In April 2018 Ms X complained to the Council. She said two other residents had asked the Council to consider a complaint under whistleblowing policy. She said she was making a complaint about related issues which “needs to be recorded in your complaints register”.
26. The Council nominated a whistleblowing officer (WO) to deal with the complaint and he interviewed Ms X.
27. In July 2018 the WO sent a comprehensive 15 page response to Ms X. The WO also looked again at previous complaints from Ms X the Council had already dealt with. Ms X did not agree with most of the WO’s findings. That Ms X did not agree with the WO is not evidence of fault. I have seen no evidence of fault in the WO’s consideration of Ms X’s complaint or his response to her.
28. Ms X says the Council took too long to deal with her complaint. The Council replied outside its usual response time. However, due to the complex nature and number of issues raised by Ms X, I do not consider the time the Council took to respond amounts to fault.
29. Ms X asked for a review of the WO’s response. The Reviewer said she would look at the process the WO followed but not his findings. The Reviewer found no fault in the process followed by the WO. Ms X believes the Reviewer should have considered her whole complaint afresh. The Council is not at fault. The Council can decide how it will consider a stage two complaint.

Ms X’s views

30. Ms X says the Council caused her injustice by treating her with contempt. She says she is a public-spirited person who tried to highlight areas of concern and the Council dismissed her legitimate complaints. I have seen no evidence of this in the Council’s responses to Ms X. The Council investigated her concerns and replied to her politely and thoroughly.
31. Ms X says putting her complaint together took her many hours and cost her money. How much effort a person puts into a complaint is a personal choice. It does not mean the Council must then uphold the complaint, or is responsible for the effort the complainant made.
32. Ms X says in January 2018 the Courts found the Council in breach of Health and Safety at Work Act. This case concerned a woman who fell into an inspection pit at a Council service centre. It is not relevant to Ms X’s complaint and I cannot consider it as evidence for her complaint.
33. I understand how passionate Ms X is about the park and how fundamentally she disagrees with what the Council is doing in the park. However, the Council owns the park and can manage it as it sees fit. The Ombudsman is not an arbitration or appeals service. We can only look at the Council’s administrative actions.

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Final decision

34. I have seen no fault or personal injustice to Ms X in the Council’s administrative actions in managing the park and the regeneration process. I have completed my investigation and closed the complaint.

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Parts of the complaint I did not investigate

35. Ms X says the Council did not originally put its proposals on its website in 2014 and when it did it only included positive responses to its proposals. She says the Council ignored local groups and said it had consulted some groups who had no memory of contact from the Council. Ms X complained to the Council about this in 2014 and 2015. If Ms X was not satisfied with the Council’s responses she should have complained to the Ombudsman at the time. I can see nothing that would have prevented Ms X’s complaining to us in 2015. Ms X complaints are now out of time.
36. Ms X says the Council had a poor contract with a golf company operating in the park which cost the Council money which it tried to cover up. The contract ended several years ago. The contract did not cause Ms X a personal injustice. Ms X complained to the Council in 2015. It is now too late for us to investigate.
37. Ms X says in 2015 the Council did not put a survey undertaken by residents on its website. The Council does not have to put third party information on its website. There is no evidence of fault and again, it happened too long ago for the Ombudsman to investigate.
38. Ms X says in 2015 the Council did not respond for three months to her partner’s emails questioning the viability of the regeneration project. She says her partner was not happy with the Council’s response. Her partner could have complained to the Ombudsman in 2015
39. Also in 2015 Ms X says the Council did not have a risk assessment for erecting cameras at height. She believes the Council did not have the 10 cameras in place it claims and falsified the footage. Due to the passage of time there is unlikely to be firm evidence of where the contractors paced the cameras and what they recorded. How many cameras the contractors used and if they had a risk assessment for erecting them does not cause Ms X injustice. It is also too late to complain to the Ombudsman about these issues.
40. In 2016 the Council took the decision at committee level to close the golf club in the park. Ms X does not agree with the Council’s analysis of a consultation. She says the Council hid information about the incompetence of the company running the golf course to make the golf course look unviable. It is too late to complain to the Ombudsman about the Council’s decision to close the golf club. A committee considered people’s views at the time. It is too late to achieve any worthwhile outcome. There is nothing we could achieve if we had any grounds to ask the Council to take the decision again. The Council has implemented the decision.
41. Ms X says an officer was disrespectful to a Councillor in January 2016 when he asked for information on the finances of the company running the gold club. She says the officer said he had minimal information and could not access the company’s accounts. This complaint is also out of time. If the Councillor thought an Officer was disrespectful, this is his complaint to make. We have no authority from the Councillor to say Ms X acts acting on his behalf. In any event this would be an internal staff management issue and not something the Ombudsman could investigate. Regarding the information itself, it is likely the Council would only have access to the public information available to anyone through Companies House.
42. Ms X says in 2016 the Council slanted the results from the 2014 consultation in its application for external funding. Ms X or someone else complained to the Heritage Lottery Fund about this at the time. Ms X says the Heritage Lottery Fund report says the Council’s claim the consultation showed overwhelming support was not justified. It is difficult to see how the Council getting funding for the park causes Ms X a personal injustice. The Heritage Lottery Fund considered a complaint and did not withdraw the funding. A body better placed to deal with this complaint has already considered it.
43. The golf club closed in October 2016 and new tenants took control of the building it had used in November 2016. Ms X says the Council targeted potential lessees from Peckham and Beckenham instead of Downham. She points to an Overview and Scrutiny Panel report from February 2018 which says it would have been better to do wider marketing but time pressure was a problem. Ms X says there was no time pressure as the Council knew from January 2014 that it intended to close the golf club. That the Council discussed this in February 2018 does not mean the time-limit to complain to the Ombudsman does not apply. Ms X knew about the new tenants in November 2016. Whatever possible uses the Council discussed for the building beforehand it did not take the decision to close it until 2016. It could not market it until then. I also can see no personal injustice to Ms X from the Council giving the lease to the current users of the building.
44. In 2016 Ms X says she discovered someone trolling her online was married to a Council Officer who worked on the park regeneration team. Ms X complained to the Council but says it did not uphold her complaint as the troll was not a Council employee. It is too late to bring this complaint to the Ombudsman. We also cannot investigate the action on a private person, even if he or she is related to a Council Officer.

Ms X’s views

45. Ms X says she made her whistleblowing complaint to the Council within the last year. She says the WO response gives opinions “for which he has no basis of knowledge whatsoever”, specifically he called into question the memories of the groups the Council says it consulted in 2014. She says the WO made unsubstantiated allegations, introduced irrelevant information, ignored evidence and cherry picked what he chose to respond to. She says because the WO wrote his response in the last year the Ombudsman should consider these complaints.
46. I have considered the complaints the WO responded to that concern recent events in the “what I found” section of this statement. In this section I have explained why I will not consider the historic complaints. The Council chose to consider historic complaints and complaints it had already replied to. It did not have to do this. That it did so is evidence it did not treat Ms X and her complaints with contempt. The Ombudsman cannot consider historic complaints unless there are grounds for exercising discretion. I have explained above why I have no such grounds.

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Investigator's decision on behalf of the Ombudsman