Summary: The Ombudsman will not investigate Mr X’s complaint about the way the Council handled his client, Mr Y’s personal information. And about the way it has dealt with Mr Y’s planning applications. This is because he has asked the ICO to consider his complaint about the way the Council has handled the personal data. And, as Mr Y has appealed to the Planning Inspectorate, we cannot investigate complaints about how one of his applications was processed. And he has not suffered any significant injustice regarding his third application because no decision has been made.

The complaint

1. Mr X complains on behalf of his client, Mr Y. He says the Council has:
• Colluded with a third party and shared Mr Y’s personal information
• is prejudiced against Mr Y because of a previous complaint which was upheld by the Ombudsman
• approved applications which are similar to Mr Y’s but refused his.
2. Mr Y wants
• A public apology
• And independent review of the Council’s planning decision making
• A finding that certain officers have breached their professional standards and for those officers to be named
• Recommendation the Council changes its policy on allocating planning cases
• Payment for all the distress, injustice and loss of value on home
• Payment of all legal costs involved in bringing complaints to the Council, Information Commissioner’s Office and the Ombudsman

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The Ombudsman’s role and powers

3. 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
• it is unlikely we could add to any previous investigation by the Council
• it is unlikely further investigation will lead to a different outcome
• we cannot achieve the outcome someone wants
• there is another body better placed to consider this complaint

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

4. 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. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector 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.

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How I considered this complaint

6. I considered the information provided by Mr X. He commented on the draft version of this decision.

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What I found

7. Mr X says the Council has shared Mr Y’s personal information with his neighbour who objects to his planning application. He confirms Mr Y has already complained to the Information Commissioner’s Office (ICO) about this.
8. The Information Commissioner’s Office (ICO) is the UK’s independent authority set up to uphold information rights. It deals with complaints about public authorities’ failures to comply with data protection legislation. The ICO is in a better position than the Ombudsman to consider such complaints. It has much wider powers than the Ombudsman to act against the Council if it finds it has failed to correctly deal with Mr Y’s personal information. Because of this the Ombudsman will not investigate this part of Mr X’s complaint.
9. Mr X says Mr Y submitted an application for a lawful development certificate, I will refer to this as submission A. And he submitted planning applications;
• Application B – a full planning application for a home on his own land
• Application C – a full planning application for a replacement home.
10. Mr X complains the Council is treating Mr Y’s applications differently to others. However, at the time of writing this decision, submission A has been approved, application B has been refused and is being appealed. Application C is ongoing.

11. We cannot investigate his complaint about the way the Council processed application B as Mr Y has appealed to the Planning Inspectorate. The Planning Inspector can only consider Mr Y’s appeal against the Council’s decision to refuse planning permission. But caselaw confirms that where an appeal right has been exercised, we hold no jurisdiction to look separately at the council’s handling of the case.
12. The Council has not yet decided whether to approve application C. If it approves the application Mr Y will not have suffered any significant injustice. Also, if he is concerned about the length of time the Council is taking to decide whether or not to grant planning permission, he has a right to appeal to the Planning Inspectorate on the grounds of non-determination. Therefore, we will not investigate this part of the complaint.
13. I understand Mr X is concerned the Council is treating Mr Y’s applications differently to his neighbours. However. the Ombudsman has previously considered a complaint by Mr Y in which he alleged the Council was inconsistent in applying its planning policies. This was because it had approved an application for his neighbour but had refused his own similar application. The Ombudsman refused to investigate this complaint because of insufficient personal injustice. And because he had appealed to the Planning Inspectorate. The Ombudsman does not reconsider issues already addressed in response to a previous complaint.

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Final decision

14. I will not investigate this complaint. This is because Mr X has asked the ICO to consider his complaint about the way the Council has handled Mr Y’s personal data. As Mr Y has appealed to the Planning Inspectorate we cannot investigate complaints about how application B was processed. And Mr Y has not suffered any significant injustice regarding application C because no decision has been made. And he can appeal to the Planning Inspectorate against non-determination.

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Investigator's decision on behalf of the Ombudsman