Summary: Mr and Mrs X complained about the Council’s failure to provide an adequate remedy following a decision the Ombudsman made in February 2017. It is too late now to ask for a review of our previous decision and the complaint is also outside our time limits for investigation. For these reasons, we should not investigate this complaint further now.

The complaint

1. Mr and Mrs X complain the Council did not provide an adequate remedy following a decision made by the Ombudsman in February 2017.

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The Ombudsman’s role and powers

2. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

5. I read the complaint and discussed it with Mr X. I also read the decision we made in February 2017 and the comments made by Mr X’s solicitor on his behalf.
6. I gave the Council and Mr and Mrs X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Background

7. In 2015, Mr and Mrs X complained about the Council’s involvement in relation to a series of planning matters between 2004 and 2012.
8. In February 2017, we sent our final decision to the complainants and the Council. The Council accepted fault and offered to make a financial contribution towards Mr and Mrs X’s costs, including the fees paid to a planning consultant.
9. To remedy the complaint, the Council agreed to:

‘… write to Mr and Mrs X reiterating its offer and setting out what information they require from them for it to consider reimbursement of the fees incurred for the application and advice in 2010 and 2011.’

10. In April 2019, a firm of lawyers representing Mr and Mrs X complained the Council had not provided a satisfactory remedy following our decision. The lawyers say that, while the Ombudsman had upheld their client’s complaint, the decision was vague and ambiguous. The lawyers also say that the fact that no specific sum was ordered in our decision left the issue of compensation in doubt. They say that because of this, it has been impossible to agree with the Council the basis of the findings made by the Ombudsman.
11. The lawyers submitted an interpretation of the Ombudsman’s 2017 decision which they say supports their calculation of costs. They say that:
• they are not at liberty to disclose the terms of a settlement reached with the planning consultant as part of litigation against him; but
• the costs now claimed against the Council do not include costs already recovered from the planning consultant.
12. The Council sent me a copy of an email it sent to Mr and Mrs X’s lawyers in February 2019 in which it outlined its position. It asked the lawyers why it had taken them so long to respond to its last letter, which it sent in August 2018.
13. The Council says it has already made its position clear in the August letter. This was that the Council has made what it considers to be a sensible offer based on a pragmatic assessment of Mr and Mrs X’s costs. It also says the matter is perhaps uncertain, because of the lack of any ‘specificity’ within the Ombudsman’s decision of 2017.
14. We made our final decision on Mr and Mrs X’s last complaint in February 2017. Our data protection file retention procedures only allow us to retain general file information, including our notes and analysis, for a year after our final decision. After this we may only keep final decision statements and the decision cover letters to the Council, the complainants and their representatives.

My findings

15. The complainants and their solicitors have asked us to revisit issues raised in our last investigation relating to planning matters that occurred long ago. They also ask us to determine a dispute they have with the Council about the meaning of a recommendation in one of our previous decisions.
16. Our general time limit on investigations is 12 months from the date the complainant was aware of the Council’s actions that have affected them or could be reasonably expected to have known about. We have a time limit on our investigations, partly because, as time goes by, memories fade and evidence can be lost or destroyed.
17. If Mr and Mrs X wanted us to investigate or decide a dispute about the application or meaning of our decision, they could and should have come to us sooner. Most of our records, including the investigator’s notes and analysis were destroyed 12 months after our previous investigation came to an end.
18. The time limit for challenging our decisions is shorter still, as it relates to the three-month time limit for judicial review.
19. Both the Council and Mr and Mrs X’s lawyer are saying our February 2017 decision was ambiguous and vague. It would have been possible for either party to question or challenge our decision at the time or within a reasonable time after it was made. This did not happen, and we cannot now re-open that decision or investigate any of the substantive issues within it.
20. For these reasons, I should not investigate this complaint further now.

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Final decision

21. I ended my investigation as this is a late complaint and I found no good reasons why we should investigate it now.

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Investigator's decision on behalf of the Ombudsman