Summary: The Council is at fault as it failed to carry out its own investigation into whether Mr Y’s occupancy of an annexe at Mr X’s property breached a planning condition. The Council also failed to take account of Mr Y’s disabilities and vulnerability. The faults caused distress and avoidable time and trouble to Mr X and significant distress to Mr Y. The Council has offered a payment of £300 to Mr X and £550 to Mr Y to acknowledge the injustice to them. This is a sufficient and proportionate remedy.

The complaint

1. Mr X complains that the Council failed to take account of Mr Y’s disabilities when visiting them to advise of a planning condition restricting occupancy of Mr X’s annexe, when deciding Mr Y was breaching the condition by living in the annexe and when deciding what action it should take. Mr X says the Council’s actions caused significant distress to Mr Y and he could not live in the annexe.

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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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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

4. I have:

• Considered the complaint and the information provided by Mr X;
• Discussed the issues with Mr X;
• Made enquiries of the Council and considered the information provided;
• Invited Mr X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

5. Mr X has provided support to Mr Y, who has disabilities, for a number of years. Mr Y lived in Mr X’s annexe. The annexe is subject to a planning condition which prevents it from being let as a separate dwelling. It restricts occupancy to members of the family living in the main dwelling or people domestically employed or formerly employed on the site.
6. In 2008, Mr X contacted the Council to ask if Mr Y could occupy the annexe without breaching the planning condition. The Council sent a letter to Mr X’s representative stating that it did not consider Mr Y’s occupation of the annexe. It referred to Mr X providing care for Mr Y and said it considered his occupation would be within the spirit of the condition.
7. Mr Y lived in the annexe before moving to his own property. Mr Y then returned to live in the annexe in early 2019. Mr X contacted the Council before Mr Y moved back in to check he could occupy the annexe. Mr X has said the Council advised it would be acceptable for Mr Y to occupy the annexe if it was acceptable in 2008. Mr X charged rent to Mr Y which was paid by housing benefit.
8. Officer, A, a revenues officer, visited Mr X and Mr Y at home and raised the issue of the planning condition. Officer A’s record of the visit states Mr X said he had spoken to planning about the annexe and there were no issues as Mr Y was dependent and Mr X was his carer.
9. Officer A sent an email to Mr X advising he had spoken to planning who said the condition applied to the annexe. The Council’s planning enforcement department then sent a letter to Mr X which stated that it had been brought to its attention that Mr X was letting the annexe as a separate dwelling. The Council said that the use of the annex should cease within 28 days to avoid possible enforcement action. The Council also advised Mr X he could apply for retrospective planning consent but this did not imply support or consent. In reply Mr X sent an email to the Council referring it to the advice given in its letter of 2008 that Mr Y would not be breaching the condition by occupying the annexe.
10. Mr X made a complaint to the Council about is decision that he was breaching the planning condition by letting the annexe to Mr Y and about officer A’s conduct during his visit. The Council considered Mr X’s complaint through its two stage complaints procedure. It did not uphold the complaint but invited Mr X to attend a meeting to see what could be done.
11. The Council held a meeting with Mr X in September 2019. Officers from planning and benefits and a senior officer also attended the meeting. The record of the meeting notes Mr X explained Mr Y’s medical conditions and the effect on Mr Y of the Council’s decision that he was breaching the planning condition. Mr X considered he was not breaching the planning condition. The Council considered Mr Y’s occupation was in breach of the planning condition. It invited Mr X to make an application to vary the condition.
12. In January 2020 the Council issued a letter stating it recognised Mr Y’s vulnerabilities and disabilities and having regard to these would not take enforcement action while working to find a permanent solution. It would support Mr X in making an application to remove the condition and waive the fee for doing so.
13. Mr X and Mr Y have since moved from the property.
14. In response to my enquiries the Council has said:

• There were a number of Council services involved in investigating the use of the annexe. The planning enforcement investigation became intertwined with the investigations being carried out by other services which led to some confusion.
• The planning enforcement team issued a formal warning letter to Mr X on the basis of information passed by other services.
• It acknowledges the planning enforcement team should have undertaken a more thorough investigation of the use of the annexe by Mr Y when other services passed information about the possible breach of planning control in 2019. It should have carried out a site visit and assessment of Mr Y’s disabilities and vulnerabilities at an earlier stage. The team should have assessed the impact the planning enforcement investigations would have on Mr Y at an earlier stage.
• The Council accepts its failures will have increased the distress and uncertainty to Mr Y between May 2019 and January 2020 in addition to the distress which he may have experienced as a result of the other investigations at that time.

15. The Council has offered an apology and payment of £300 each to Mr X and Mr Y for failing to investigate the situation at an earlier date and a further £250 to Mr Y for the distress caused.
16. The Council will also review its processes and procedures in relation to how the Council takes account of equalities issues when pursuing planning enforcement investigations and taking formal enforcement action.
17. Mr X says Mr Y suffered significant distress as a result of its decision that he was in breach of the planning condition as he did not feel he could live in the annexe Mr Y is seeking for the Council not to treat him in this way again.

My assessment

18. The Council has acknowledged it is at fault as the planning enforcement team did not carry out its own investigation into Mr Y’s occupancy of the annexe. It also did not take account of Mr Y’s vulnerability and disabilities when pursuing the matter. I cannot say, on balance, that the Council would not have reached the conclusion that Mr Y’s occupation of the annexe was in breach of the planning condition. But it is likely the Council would have decided not to pursue enforcement action and support Mr X with making an application to vary the condition much sooner than January 2020. It is also likely it would not have sent the formal letter warning of enforcement action in May 2019.
19. The Council also missed the opportunity to resolve Mr X’s complaint when he made his complaint and at the meeting in September 2019. The Council could have realised the planning enforcement team had not carried out its own investigation and had not taken account of Mr Y’s disabilities and vulnerability at that time.
20. As a result of the faults Mr X was caused distress and put to avoidable time and trouble in having to deal with the Council’s warning of enforcement action, in making his complaint and in meeting with the Council. Mr Y was caused significant distress by the enforcement investigation and by the Council’s failure to take account of his disabilities and vulnerabilities.
21. I welcome the Council’s offer to remedy the injustice to Mr X and Mr Y. The question for me is whether this is a sufficient and proportionate remedy. I consider the remedy of £300 offered to Mr X is sufficient and proportionate to acknowledge the distress and avoidable time and trouble caused to him. I also consider the total remedy of £550 offered to Mr Y is sufficient and proportionate to acknowledge the significant distress caused to him. These remedies are at the upper end of what we would normally recommend in the circumstances of the complaint and are in accordance with our guidance.
22. I also welcome the Council’s undertaking to review its procedures and processes to ensure it takes account of the Equality Act when carrying out enforcement investigations.

Agreed action

23. That the Council:
1. Sends a written apology to Mr X and Mr Y for the distress and avoidable time and trouble caused by the failure of the planning enforcement team to carry out its own investigation into Mr Y’s occupation of Mr X’s annexe and take account of Mr Y’s vulnerabilities and disabilities when pursuing the matter.
2. Make a payment of £300 to Mr X to acknowledge the distress and avoidable time and trouble caused and £550 to Mr Y to acknowledge the significant distress caused to him. The Council should take the action at a) and b) within one month of my final decision.
3. Review its procedures to ensure the Council takes account of a person’s vulnerability and disabilities and the requirements of the Equality Act 2010 when investigating possible breaches of planning enforcement and when deciding if to take enforcement action. The Council should take this action within three months and provide a copy of the revised procedures to the Ombudsman.

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Final decision

24. The Council is at fault as it failed to carry out its own investigation into whether Mr Y’s occupancy of an annexe at Mr X’s property breached a planning condition. The Council also failed to take account of Mr Y’s disabilities and vulnerability. The faults caused distress and avoidable time and trouble to Mr X and significant distress to Mr Y. The Council has offered a payment of £300 to Mr X and £550 to Mr Y to acknowledge the injustice to them. This is a sufficient and proportionate remedy so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman