Summary: We will not investigate this complaint about the Council’s handling of a planning enforcement investigation into a property the complainant owns, and the subsequent complaint process. There is insufficient evidence of fault in how the Council decided to progress the case, and it would not be a good use of our resources to look at the complaints process in isolation.

The complaint

1. Mr X complains about the Council’s handling of a planning enforcement investigation into the use of an outbuilding at a property he owns, and the subsequent complaint process. He says the Council’s escalation of the enforcement case was unnecessary and disproportionate, resulting in legal costs and reputational stress.

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The Ombudsman’s role and powers

2. We can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. With regard to the first bullet point above, we can consider whether there was fault in the way an organisation made its decision. If there is insufficient evidence of fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. And it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

5. I considered information provided by Mr X and the Council, which included their enforcement and complaint correspondence.
6. I also considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council had previously visited the property during a pre-arranged visit with Mr X. It then made an unannounced visit following a further report that a breach of planning control was still occurring. The tenant answered the door, and called Mr X. Following a telephone conversation between Mr X and the officer, the tenant closed the front door, so the officer was unable to gain entry. The Council subsequently invited Mr X to an interview under caution.
8. I appreciate Mr X is very unhappy the Council decided to progress the enforcement investigation in this way. But the Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong, and our role is not to ask whether we agree or disagree with what the Council did. Instead, we look at whether there was procedural fault in how it made its decisions. If we decide there is insufficient evidence of how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
9. I consider there is insufficient evidence of procedural fault in the Council’s handling of the enforcement case and, in the absence of any independent records of the visit, we are unlikely to be able to establish what happened or what was said. So, the Ombudsman will not start an investigation. In reaching this view, I mindful that the Council:
• had a duty to investigate the report of an ongoing breach of planning control.
• had rights of access under section 196A of the Town and Country Planning Act 1990, and it is an offence to wilfully obstruct an authorised person acting in exercise of that right of entry.
• was entitled to reach a professional judgement on how to proceed, even if Mr X disagrees with the decision it reached.
10. As we are not investigating the underlying issue being complained about, it would not be a good use of our resources to pursue any associated concerns about the Council’s complaint process in isolation.

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Final decision

11. We will not investigate Mr X’s complaint because there is insufficient evidence of fault in the way the Council reached its decision on how to progress the enforcement case, and we will not look at the subsequent complaint process in isolation.

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Investigator's decision on behalf of the Ombudsman