Summary: The Ombudsman will not investigate this complaint about the Council taking planning enforcement action against the complainant, and breaching data protection rules by publishing an objection letter containing comments about the complainant. This is because parts of the complaint are late, we cannot achieve the outcomes the complainant is seeking, and it is reasonable to expect the complainant to contact the Information Commissioner or pursue court action in relation to the alleged data breaches.

The complaint

1. The complainant, whom I refer to as Mr B, says:
• Council officers are guilty of gross misconduct in a public office, in relation to planning enforcement action taken against developments on his land; and,
• The Council has been involved in a serious breach of data protection, by allowing comments about him to appear in an objection letter on its planning application website.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We investigate complaints about ‘maladministration’ and ‘service failure’. We use 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. We 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:

• 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)

4. In that regard, 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)
5. And 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)
6. The law also says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. But we cannot investigate a complaint if someone has already started court action about the matter. (Local Government Act 1974, section 26(6) (c), as amended)
7. Finally, the Ombudsman will not reinvestigate issues that we have already considered and addressed in a previous complaint.

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How I considered this complaint

8. I have considered:
• The complaint forms submitted by Mr B to the Ombudsman on 22 March and 1 June;
• The Council’s letters/emails to Mr B dated 9 and 31 May; and,
• The Ombudsman’s decision on a previous complaint by Mr B.
9. I also gave Mr B the opportunity to comment on a draft version of this statement.

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What I found

10. The restrictions detailed in paragraphs 2 to 7 above apply to Mr B’s complaints, so I do not consider the Ombudsman should investigate them.

Alleged gross misconduct relating to enforcement action

11. Mr B’s complaint to the Ombudsman says the Council’s actions started over 3 years ago. The 12-month time restriction would therefore apply to any parts of the complaint about matters that Mr B was aware of more than a year ago. I see no reasons why the Ombudsman should exercise discretion to consider any late issues now.
12. In addition, the Ombudsman considered another complaint from Mr B in April 2019, about a warrant the Council used to gain entry to Mr B’s land. The Ombudsman will not now reconsider any of the issues already addressed in this previous complaint.
13. Lastly, Mr B says he wants the sacking and arrest of all the officers involved. The Ombudsman has no powers to achieve the outcomes Mr B is seeking.

Alleged data protection breaches

14. If Mr B believes the publishing of the objection letter amounts to a breach of data protection, then it is open to him to pursue the matter with the Information Commissioner. I consider it reasonable to expect Mr B to follow this route, particularly given the Commissioner’s expertise in dealing with such matters.
15. I also understand Mr B has made a claim for compensation against the Council for the stress and upset caused by the appearance of the letter on its website. It therefore seems reasonable to expect Mr B to pursue legal action to remedy the injustice he claims has arisen from the alleged fault by the Council.

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Final decision

16. The Ombudsman will not investigate Mr B’s complaint, for the reasons explained above.

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Investigator's decision on behalf of the Ombudsman