Summary: The Ombudsman will not investigate this complaint about the Council seeking an affordable housing contribution in relation to the complainant’s planning application. This is because the complainant did not contact the Ombudsman within 12 months of becoming aware of the alleged fault, and there are insufficient grounds to exercise discretion to consider the matter now.

The complaint

1. The complainant, whom I refer to as Mr B, says the Council was wrong to seek a £5000 affordable housing contribution as part of the approval of his planning application in 2014.
2. In particular, Mr B says the contribution was not mentioned at the pre-application or validation stages of the planning process, and was only raised when the application was about to be determined. He says he did not receive a receipt for the direct payment he made into the Council’s bank account, and the Council has since confirmed (on a separate application in late-2015) that contributions can only be accepted via a legal agreement, and not via the payment method Mr B used.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. And the law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
6. The Planning Inspector acts on behalf of the responsible Government minister and can consider appeals about a decision to refuse planning permission.

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How I considered this complaint

7. I have considered:
• Mr B’s complaint to the Ombudsman;
• The Council’s Stage 2 complaint response;
• Information about the planning application on the Council’s website;
• Mr B’s comments on a draft version of this statement, and the supporting information/evidence he provided;
• Information from the Council about its correspondence with Mr B and his agent about the matter.

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What I found

8. The 12-month time restriction detailed in paragraph 4 above applies to Mr B’s complaint. This is because the application was approved in August 2014, following Mr B’s decision to pay the affordable housing contribution, yet he did not contact the Ombudsman about the matter until November 2019.
9. I have carefully considered the information provided by Mr B and the Council, which provides evidence of Mr B’s attempts to pursue the matter during the intervening 5 years.
10. But there are still significant gaps of time (January 2015 to December 2015; and June 2016 to December 2018) where Mr B does not appear to have contacted the Council, and it took a further 6 months (between May 2019 and November 2019) for Mr B to contact the Ombudsman after the Council had signposted him to us.
11. I appreciate Mr B says the Council did not mention its complaints process during any of their correspondence between 2014 and 2016, and the Council did not inform him about the Ombudsman’s existence prior to its Stage 2 complaint response in 2019. But I am also mindful that information about the Council’s complaints process can usually be found on its website, and we do not generally accept ignorance of the Ombudsman as a reason for not coming to us because we have existed since 1974.
12. Finally, the other restriction detailed in paragraphs 5 and 6 above also applies to Mr B’s complaint. If he disagreed with the Council’s request for an affordable housing contribution in 2014, he could have waited for a refusal on that ground, and then appealed to the Planning Inspector. I realise Mr B says this would have delayed commencing the development. But it was ultimately for him to decide whether to agree to the contribution and obtain planning permission, or to wait and use the right of appeal put in place by Parliament to resolve such disputes. So, even if the time restriction did not apply to Mr B’s complaint, it seems unlikely we would investigate whether it was appropriate to request the contribution, because it is reasonable to expect him to have used his right of appeal.
13. On balance, I am not persuaded there are sufficient grounds to exercise discretion to consider this late complaint now.

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Final decision

14. The Ombudsman will not investigate Mr B’s complaint. This is because it is reasonable to expect Mr B to have contacted the Ombudsman sooner.

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Investigator's decision on behalf of the Ombudsman