Summary: Mr X complained the Council intentionally provided incorrect planning advice, resulting in him losing the opportunity to benefit from an energy efficiency upgrade scheme. We have found the Council at fault for its handling of this matter and for delays in complaints handling. We recommend the Council offer an improved remedy to address the injustice caused to Mr X.

The complaint

1. Mr X complained the Council gave incorrect advice concerning whether he required planning permission for replacement windows. Mr X said the Council sought to disadvantage him by doing so.
2. Mr X said this resulted in him missing the opportunity to have his windows replaced. He also experienced avoidable frustration and distress. He cannot afford to have the windows replaced by other means and is seeking an appropriate remedy.

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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’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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Relevant legislation, guidance and policy

Planning permission and lawful development

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
8. It is possible to seek formal confirmation from councils that an existing or proposed development or use of land is lawful and so needs no planning permission. If the Council accepts the evidence provided, it can issue a certificate of lawful use to the applicant.
9. This may happen where:
• the Council has already granted planning permission for the use or development;
• a development is ‘permitted development’ and so deemed acceptable because it complies with limits in regulations;
• the development was unlawful, but the time limit for enforcement actions has now passed.

Permitted development

10. Not all development needs planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.

Conservation areas

11. Councils have the power to create Conservation Areas. These are areas considered to have special architectural or historic interest that should be preserved or enhanced.
12. Councils are under a duty to pay special attention to preserving or enhancing Conservation Areas when making decisions on planning applications. Even if a proposed development is outside a Conservation Area, councils may take account of the impact it will have upon the Conservation Area itself.

Council complaint procedure

13. The Council operates a two-stage complaint procedure:
• At stage one, the Council will respond to complaints within 20 working days. If there will be a delay, the Council says it will explain why. It will also clarify the expected response date and provide referral details for the Ombudsman, where needed.
• At stage two, the Council will acknowledge the complaint within five working days and respond fully within 25 working days. If there will be a delay, the Council will follow the same procedure as above.

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How I considered this complaint

14. I discussed the complaint with Mr X and considered information he provided.
15. I considered information the Council provided about the complaint.
16. Both Mr X and the Council were able to comment on a draft version of this decision. I considered any comments received before making a final decision.

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What I found

Background

17. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
18. In 2022, the Council secured funding as part of a government scheme to upgrade homes in its district to make them more energy efficient. Mr X registered with this scheme and met the criteria to enable him to benefit from works, including replacement windows for his property.
19. The contractor exchanged correspondence with the Council about Mr X’s proposed works. Following these exchanges, the installer told Mr X the Council had rejected the proposed replacement windows. This was because Mr X lived in a conservation area, which had extra planning restrictions. The Council believed the proposed windows were not a like-for-like match and therefore not a permitted development. The installer said if Mr X could provide proof of the Council’s permission to install the windows, it could re-open Mr X’s case.
20. Mr X complained to the Ombudsman in 2022 about the Council’s decision. The Ombudsman did not investigate this complaint. We could not decide whether the window design was suitable, as this was a matter for the planning system to resolve. We said it was open to Mr X to make a planning application, which the Council could decide. If Mr X remained unhappy, he could appeal to the Planning Inspectorate.
21. In January 2023, Mr X complained to the Council again. He said it was victimising him due to the advice it gave about replacement windows and by enforcing conservation area requirements. In February 2023, the Council responded:
1. The Council said it had reviewed the government’s permitted development guidance and decided it gave Mr X “erroneous advice”. The Council said officers had believed the advice related to the design of the windows, rather than the materials used, and so provided wrong advice.
2. The Council asked Mr X to provide its letter to the contractor carrying out the scheme as proof of the Council’s definitive advice on the matter.
3. The Council did not uphold Mr X’s complaint about alleged victimisation. It apologised for its mistake and the inconvenience and distress caused.
22. Mr X responded to the Council, saying he would pass this information onto the contractors, while noting they had not always been responsive. He said he hoped it was not too late and highlighted the distress and frustration caused.
23. In June 2023, the contractor told Mr X his property had been removed from the scheme. They suggested Mr X make direct contact with the scheme administrators to discuss this.
24. In July 2023, Mr X complained to the Council:
1. Mr X complained about Officer J. Mr X said Officer J had told Mr X in July 2022 that replacement windows did not need planning permission. However, Mr X said Officer J then told the contractor the window design was not acceptable in a conservation area. Mr X said Officer J knew this was incorrect, as others in the area had different window designs. The Council had now accepted it gave incorrect advice.
2. Mr X said because of the time taken to confirm this was incorrect, Mr X lost the opportunity to have his windows replaced. Mr X asked the Council to cover the cost of replacing his windows.
25. In September 2023, the Council responded to Mr X’s complaint:
1. It apologised for its delay in responding, but said it had exchanged emails with Mr X and spoke to him on the phone.
2. The Council said it had provided a letter confirming that planning permission was not needed, in its previous response to Mr X’s complaint.
3. The Council set out its findings for Mr X’s complaint about Officer J. It accepted it had made an error interpreting the permitted development rules. It did not accept Mr X’s complaint of incompetence or discrimination.
4. The Council said it was sympathetic to Mr X’s lost opportunity. It said it had already provided a letter setting out its position. It said it had checked the scheme details and the offer Mr X wanted to use seemed to still be available. It said other schemes were also available.
5. The Council said it had learned lessons from this case. It said it should not provide informal advice on the need for planning permission. Instead, it should either invite an application for permission or a lawful development certificate. It also said its website needed updating to provide better advice on the need for planning permission.
26. In October 2023, Mr X escalated his complaint. He said the Council had not resolved his complaint. He also said the Council had misunderstood his complaint and its response was late.
27. In December 2023, the Council issued its final response to Mr X’s complaint:
1. The Council accepted the replacement windows did not need planning permission. It agreed it made an error interpreting the permitted development regulations and said it had apologised for this and for the inconvenience caused.
2. The Council said Mr X had sought advice from a conservation officer, who understandably focused on the impact of the window design. The Council said its intent was to be helpful, but agreed Officer J should not have expressed informal views. The Council said it should have told Mr X to apply for planning permission, or apply for a lawful development certificate, to settle suitability. It said a lawful development certificate was a legal document the Council issued to confirm if proposed works were lawful. It said only the formal planning process could decide if works were acceptable.
3. The Council set out the service improvements it had made. It said Officer J had been mistaken, but had tried to help. It did not accept there had been any discrimination or incompetence shown. The Council offered Mr X £200. It said this would not cover the cost of replacement windows, but said it was to recognise its error.
4. The Council referred to the Ombudsman’s previous decision, which said Mr X could apply for planning permission to settle the matter. It said this showed Mr X knew, from December 2022, he could have applied for permission to address any uncertainty. The Council said Mr X did not follow this course of action. It said it had also said this in February 2023. The Council said there could have been enough time to apply for permission and take up the offer. It said other similar schemes were still available.

Analysis

Complaint regarding lost opportunity

28. The Council accepted it offered Mr X the wrong advice and gave the installer incorrect information. The Council said it accepted it acted with fault, which resulted in the injustice of Mr X losing the opportunity to fully benefit from the scheme, which would have included getting replacement windows.
29. I have seen internal correspondence in early 2023 where the Council recognised its error and officers discussed contacting the installer directly, to help try to resolve the matter. However, I have seen no evidence this contact took place. The Council sought to provide a remedy by giving Mr X a letter that set out its position, which Mr X could provide to the installer. I understand Mr X did so. The Council did seek to remedy the injustice to Mr X, but it appears this was too late to be effective.
30. It is objectively the case Mr X could have applied for planning permission or a certificate of lawful development to address the question of suitability, which the Ombudsman previously highlighted. We cannot say if Mr X could have obtained permission in time, had he applied. Given the Council’s changed position, I can say on balance the Council would have granted planning permission, or provided a certificate of lawful development, if Mr X had applied.
31. I must therefore account for the possibility Mr X could have mitigated the resultant injustice by applying for permission, the process of which could have settled this question in time to change what happened. However, given the Council’s acceptance of fault, I do not believe the Council can completely rely on any lack of action by Mr X in mitigation. I therefore believe its proposed remedy is insufficient and does not adequately recognise the avoidable distress and frustration caused to Mr X by the Council’s faults.
32. The Council suggested other schemes were available. I have reviewed the details of the other schemes the Council signposted Mr X to. There are schemes that have similar aims, such as increasing insulation within the home to improve energy performance. However, the scheme in question was a government funded scheme, delivered at scale, and specific in terms of its scope, timescales and qualification criteria. Similar schemes may run in the future, but the Council confirmed to me it was not presently party to any future schemes that would clearly address Mr X’s lost opportunity.
33. I have considered the Council’s responses about the advice offered by Officer J. I am satisfied the Council addressed the intent behind this advice. I do not believe the evidence available supports the assertion the Council sought to intentionally disadvantage Mr X. I have not found the Council at fault for doing so. On Officer J’s conduct, this is not something the Ombudsman could address. The Ombudsman considers the actions of the Council as a single entity, responsible for discharging its functions and responsibilities. We would not assess individual officer conduct, or recommend the Council consider whether disciplinary proceedings are warranted.

Complaint handling

34. The Council’s response to Mr X’s July 2023 stage one complaint was around four weeks late. Its response to Mr X’s October 2023 complaint was also around four weeks late.
35. There was therefore a cumulative delay of around eight weeks across the Council’s complaints procedure. I have found the Council at fault for this delay. This caused Mr X an injustice, in the form of avoidable time and trouble. The Council has not addressed this injustice. I have recommended the Council act to remedy this.

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Agreed action

36. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Mr X for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Review any upcoming energy efficiency schemes the Council could be party to and from which Mr X may benefit. The Council will write to Mr X with details of these schemes, with an offer of support to help him apply to the schemes.
3. Pay Mr X £1000 in recognition of the avoidable distress and lost opportunity to fully engage with the upgrade scheme, due to the Council’s faults. This would include the £200 the Council already offered, if it has not yet been paid. I have considered the Ombudsman’s Guidance on Remedies when recommending this figure. In particular, I have considered the Guidance defines stress, inconvenience, frustration and lost opportunity as forms of distress. I have considered the Council’s recognition that its faults caused Mr X an injustice. I have also considered Mr X could have applied for planning permission to address the issue of suitability and this may have mitigated the resultant injustice.
4. Pay Mr X a further £150 in recognition of the avoidable time and trouble he experienced as a result of delays in the Council’s complaints procedure.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman