Summary: Mrs B complained the Council failed to search its systems properly causing her permitted development to be investigated twice. She also complained the Council failed to protect her personal details, comply with data protection rules or consider her complaint properly. We uphold Mrs B’s complaint and find the Council put her to the time and trouble of complaining and caused her distress. The Council has agreed to apologise to Mrs B, pay her the sum of £100 for the injustice caused and share this decision with its staff.

The complaint

1. Mrs B complains the Council failed to;

• Search its systems properly ensuring any officer interrogating the system would find her previous investigation;
• Comply with the Data Protection Act and protect her personal details;
• Properly consider her planning application for a fence which resulted in planning permission being denied and dates of hearings delayed and changed;
• Consider her complaint about the alleged intervention of a councillor’s in her planning application and;
• Consider her complaint properly.

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What I have investigated

2. I have investigated Mrs B’s complaint about the Council’s investigation into her permitted development, its handling of her personal details and its complaint handling.
3. I have not investigated Mrs B’s complaint about the Council’s handling of and decision on her planning application or her allegation of the intervention of councillors in that process. I will explain why at the end of this statement.

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The Ombudsman’s role and powers

4. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
7. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspectorate acts on behalf of a government minister in determining planning appeals. (Local Government Act 1974, section 26(6)(b), as amended)
8. The Planning Inspectorate considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission
• a decision to refuse planning permission
• conditions placed on planning permission
• a planning enforcement notice.

9. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

10. I have considered the documentation provided by Mrs B in support of her complaint and the information provided by the Council.
11. Mrs B and the Council have been sent a draft and I have considered their comments before making a final decision.

Legislation

12. Data Protection Act 2018 (DPA)

Everyone responsible for using personal data has to follow strict rules called ‘data protection principles’. They must make sure the information is:

• used fairly, lawfully and transparently;
• used for specified, explicit purposes;
• used in a way that is adequate, relevant and limited to only what is necessary;
• accurate and, where necessary, kept up to date;
• kept for no longer than is necessary;
• handled in a way that ensures appropriate security, including protection against unlawful or unauthorised processing, access, loss, destruction or damage.

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What I found

13. In 2018 Mrs B constructed a building on her property without planning permission.
14. The Council said it received a complaint in relation to the building on Mrs B’s land. The complaint was passed to an enforcement officer who was tasked with the investigation.
15. The enforcement officer decided the building fell within the permitted development criteria. Permitted development rights allow the improvement or extension of homes without the need to apply for planning permission. The Council wrote to Mrs B in June 2018 and confirmed this. The Council closed its investigation.
16. In 2019, a further complaint was made regarding the same building on Mrs B’s land. The new complaint was passed to a different enforcement officer. In the course of that investigation, the Council conducted a search by inputting the number of Mrs B’s property. The Council made contact with Mrs B and informed her of the investigation. She explained to the Council the building had already been subject to an earlier investigation where it had been assessed as being within the permitted development criteria.
17. When it became clear that Mrs B’s permitted development had been investigated before, the Council apologised and explained this had happened due to an administrative error. The Council said the investigator had only entered the property number rather than the name of the property. The Council say it closed the second investigation as soon as it became aware it had previously been investigated.
18. Mrs B did not accept the apology from the Council and did not accept this was an administrative error.

Handling of Personal Data

19. In late 2019 Mrs B made an application for planning permission for alterations to be made to a boundary fence.
20. The Council published information about the planning application on its website. This included the address of the proposed development and informed interested parties when representations should be made. The Council also notified Mrs B’s neighbours of the proposals and put up a notice on and near the site. These are routine actions taken by most councils to publicise a planning application.
21. Mrs B says upon accessing the Council’s website she found that her name and email address were visible and in the public domain on an uploaded document. She complained to the Council and questioned why her details were visible while other representations containing names and email addresses had been redacted.
22. The Council acknowledged Mrs B’s name was visible in the uploaded document and her email address was visible if a user was to hover the cursor over her name. The Council said there had been an administrative error and it had failed to redact Mrs B’s personal details from the document. It informed her that as soon as it was aware that her personal details were visible it redacted them, referred itself to its internal information officer and offered her an apology.
23. Mrs B replied to the Council saying that she did not accept the apology given or its findings in the stage one complaint review. Mrs B says she felt the Council had not addressed her complaint and requested her complaint be considered at stage two.
24. The Council considered Mrs B’s complaint at stage two and again apologised for both the data breach and the second investigation into Mrs B’s permitted development. However, the Council said it did not uphold her complaint.
25. Mrs B complained to the Ombudsman in October 2020.

Analysis

26. In 2019 the Council received and responded to a complaint about a building on Mrs B’s land. In conducting its investigation the Council contacted and questioned Mrs B about the building. As part of the investigation the Council did not conduct a proper or adequate search of its systems. In its reply to Mrs B it acknowledged that it failed to search for Mrs B’s house under names and had only conducted a search on its postcode. This was fault. If the Council had conducted an adequate search of its records it would have found a similar complaint had been previously raised. It would have also seen the Council had confirmed the matter had previously been investigated and confirmation given to Mrs B that it fell within permitted development rights. This caused an injustice to Mrs B who was put to avoidable inconvenience because she had already asked for and received confirmation her building did not need planning permission.
27. The Council apologised to Mrs B and explained there had been an administrative error. Mrs B did not accept the apology and said that she did not believe the Council’s explanation. She added she felt that the Council had made too many mistakes in its dealings with her. The Council has acknowledged fault for investigating Mrs B twice for the same matter and swiftly closed its investigation once it became aware of the issue. I am satisfied the Council’s apology is a sufficient remedy for the injustice which was caused to Mrs B on that occasion.
28. I have exercised discretion to investigate part of this complaint because we can remedy for personal injustice caused by a data protection issue. The ICO cannot recommend payments for any personal distress resulting from a data breach. This is something the Ombudsman can consider.
29. The Council acknowledges there was fault in its handling of Mrs B’s personal data. It says Mrs B’s email address became visible when a cursor was hovered over her name and acknowledges it failed to redact this when it uploaded the documents to its planning portal. This is fault. The law requires the Council to ensure appropriate protection for Mrs B’s personal data. The Council failed to protect Mrs B’s personal information from being both visible and accessible in the public domain. Mrs B explained she had previously been involved in a traumatic incident. She says the breach of her data caused her the injustice feeling extremely anxious and fearful. She says the data breach has impacted on her mental wellbeing and quality of life and left her wanting to move from her home.
30. In its response to Mrs B’s complaint the Council apologised to her for the way it handled her personal data. It says this was an administrative error but that it took immediate action to redact her personal details as soon as it became aware of the breach. The Council also says it reported the breach to its internal information officer, who reviewed this as well as conducting an internal review of the matter to learn from it.
31. I am satisfied the Council acted appropriately once it identified it had made an error in handling Mrs B’s personal data. I find fault with the Council’s handling of Mrs B’s personal data. It has apologised to Mrs B, as well as referring itself to its information officer and conducting an internal review. However, the fault has led to the injustice of Mrs B feeling both anxious and vulnerable in her home. In recognition of this I have made a recommendation for the Council to make a payment to Mrs B for the anxiety and distress caused by its handling of her personal data.
32. Where we find fault that has caused injustice we aim to put the person back in the place they would have been but for the fault. Our Guidance on Remedies suggests that where a person cannot be put back in the place they would have been but for the fault identified in the investigation we will recommend the Council makes a symbolic payment in recognition of the distress caused and the avoidable time and inconvenience to which Mrs B has been put.
33. The Council has acknowledged administrative errors and apologised, yet it did not uphold Mrs B’s complaint at stage two. In reviewing how the Council reached that decision I find fault in its response to her and the confusion it caused by acknowledging administrative errors while telling her it did not uphold her complaint. This was fault and has caused confusion to Mrs B.
34. In making recommendations I have considered the Council’s previous responses and its apology to Mrs B.

Agreed action

35. By 17 April 2021, to remedy the injustice caused the Council has agreed to:

• Apologise to Mrs B for the opening of a second and unnecessary investigation into her permitted development, its handling of her personal data and the confusion of its complaint response.
• Pay Mrs B £100 for the time, trouble and distress.
• Share the final decision with staff in the Planning Department to highlight the importance of the Data Protection Act 2018.

36. The Council should inform the Ombudsman when it has completed the recommendations.

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Final decision

37. We find fault with the Council’s second investigation into Mrs B’s permitted development, the breach to her personal data and its complaint handling. This has caused an injustice to Mrs B.

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Parts of the complaint that I did not investigate

38. Mrs B also complained about the Council’s handling and decision making for her planning application for her boundary fence.
39. Mrs B’s complaint about the council’s handling of her planning application encompassing her concerns regarding interventions by councillors and other representations lie outside our jurisdiction because she has exercised her right of appeal to the planning inspectorate.

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Investigator's decision on behalf of the Ombudsman