Summary: We will not investigate this complaint about the Council’s alleged failure to consult properly on closure of a public building. This is because some events described have been subject to court action and an investigation would not result in a different outcome. The remaining part of the complaint is about an ongoing consultation so we will not intervene by investigating.

The complaint

1. Mr & Mrs X say the Council decided to permanently close a public building without proper consultation, and wrongly classed the building as a community centre rather than a performing arts centre. They say this prevented the building from eligibility for the Government’s Culture Recovery Fund. The Council has changed its position on the closure and is now running an open consultation, but Mr & Mrs X have concerns the Council is not properly considering or planning for all consultation outcomes.
2. Mr & Mrs X want the Council to:
1. Accept fault and face consequences for its initial failure to consult and follow procedure.
2. Properly plan for the possibility the building remains open and ensure funding is available.
3. Allow the public to use the building for its original purpose while the consultation is ongoing.

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The Ombudsman’s role and powers

3. The Ombudsman investigates 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. We do not start or may decide not to continue with an investigation if we decide further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))
4. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code and Guidance on Jurisdiction.

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My assessment

Initial failure to consult on closure

7. In September 2020, the Council decided to close the building in question. Local campaigners judicially reviewed the Council’s decision in court. In January 2021 the Council agreed to a consent order for a comprehensive engagement programme and consultation. Therefore, the judicial review was withdrawn.
8. We will not investigate the Council’s initial decision to close the building without consultation. This matter has already been to court, and this resulted in a change of the Council’s decision. Although Mr and Mrs X were not involved in the court action further investigation would not result in a different outcome and so we will not investigate this complaint.

Ongoing consultation

9. From January 2021 to present day, the NHS has been using the building temporarily as a vaccination centre. In June 2021 the Council launched a consultation about the permanent future of the building, using an independent consultancy. This consultation is ongoing, and the Council has not yet published the final report.
10. Mr & Mrs X have concerns about the ongoing consultation. However, we will not intervene in an ongoing consultation. The consultation has not ended so it is not yet possible to say if there has been fault causing an injustice to Mr & Mrs X. The consultation may result in the building remaining open and returning to its original purpose. If, once the consultation has ended, Mr & Mrs X believe there has been fault in how the Council carried out the consultation which has caused them injustice, they could raise a new complaint.

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Final decision

11. We will not investigate this complaint. This is because some events described have been subject to court action and an investigation would not result in a different outcome. The remaining part of the complaint is about an ongoing consultation so we will not intervene by investigating.

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Investigator's decision on behalf of the Ombudsman