Summary: We will not investigate this complaint about the legal costs incurred by the complainant. We have not seen evidence of fault in the Council’s actions. Nor will we investigate his complaint about the Council’s refusal to provide information. It is reasonable for the complainant to refer this part of his complaint to the Information Commissioner’s Office.

The complaint

1. The complainant, I shall call Mr B, says the Council refused to draft a Unilateral Undertaking for his planning application. He says his solicitor had to do it instead and this added more than £8,000 to his legal costs.
2. Mr B also complains the Council refused to provide information he sought under the Freedom of Information Act.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A (6), as amended)
4. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

5. I considered information provided by Mr B and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr B applied for planning permission for 8 Flats. The Council advised that to comply with its planning policy Mr B had to enter a Unilateral Undertaking to allow the owners of the development site to place legal obligations on the land requiring a financial contribution to the Council towards affordable housing.
8. Mr B says his solicitor charged him more than £8,000 extra for legal work because the Council refused to draft the Unilateral Undertaking. He also says the Council delayed the process which again drove up the costs.
9. In response to his complaint, the Council has confirmed that it is not party to the Unilateral undertaking. This it something Mr B’s solicitor could have drafted and submitted to the Council however they saw fit. However, the draft presented did not meet the Council’s needs and further work was needed.
10. The Council is not responsible for drafting the Unilateral Undertaking. The document and the costs for producing it are matters for Mr B and his solicitor.
11. Mr B also complains the Council has refused to provide information he is seeking.
12. It is reasonable to expect Mr B to refer the matter to the Information Commissioner’s Office (ICO). That is because this is the body with specific powers and expertise to look into Freedom of Information Act and Environmental Information Regulations issues. The Information Commissioner’s Officer has powers which the Ombudsman does not have to require compliance with the Freedom of Information Act and the Environmental Information Regulations 2004.

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Final decision

13. We will not investigate Mr B’s complaint because the Council is not a party to the Unilateral Undertaking and was not responsible for drafting it. And it is reasonable to expect his to refer his concerns about the Council’s responses to his Freedom of Information requests to the ICO.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman