Summary: The Council is at fault for refusing to respond to Mr X’s complaint and for threatening him with legal action. The Council should apologise, pay Mr X £250 and take action to improve its complaint handling. I have stopped investigating the other parts of
Mr X’s complaint as he has moved away from the area and so there is no continuing injustice to him.

The complaint

1. Mr X complains the Council granted planning permission for new properties on land next to his home. He says this resulted in him losing the right to park his car on the land. He believes he had an established right to do so.
2. Mr X says the Council’s housing department, which was building the properties, refused to respond to his complaints about the loss of parking and his rights to the land. Mr X says the Council threatened to take legal action against him if he continued to make complaints.
3. Mr X says he has been forced to sell his home and move elsewhere. He says he has been put to significant time and trouble pursuing his complaints and was left feeling distressed when he was threatened by the Council.

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The Ombudsman’s role and powers

4. 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)
5. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

6. If we are satisfied with a council’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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How I considered this complaint

7. I have spoken to Mr X about his complaint and considered the information he has provided to the Ombudsman. This includes correspondence with the Council.
8. I have also considered information the Council has provided to the Ombudsman which consists of its response to Mr X’s complaints.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What happened

10. Northampton Partnership Homes (NPH) is an arm’s length body set up by the Council to manage its social housing stock. The actions of NPH are the actions of the Council for the purposes of an Ombudsman investigation.
11. NPH applied for planning permission to build residential properties on land next to Mr X’s home on the site of existing garages. Mr X says that he has always used the land for parking his car and believes he has easement rights due to the length of time he has used the area for parking. Mr X also believes he has rights to access the land in question due to covenants in relation to his property and the surrounding land.
12. The Council granted planning permission for the properties. Mr X complained to the Council about its decision to grant planning permission. In the same e-mail
    Mr X also complained to NPH about his legal rights to use and access the land. Both the Council and NPH were copied into the e-mail.
13. The Chief Executive of NPH e-mailed Mr X to say that NPH would not respond to his complaint as it was a matter for the Council. Mr X responded to say he was satisfied with this so long as the Council responded to all the points he had raised.
14. The Council responded to Mr X’s complaint and said there was no fault in its decision to grant planning permission for the residential properties. The Council explained that matters relating to rights over the land should be addressed by NPH.
15. In early June 2020, Mr X e-mailed the Chief Executive of NPH and advised the Council had not responded to all his points. He asked NPH to respond to the remaining points through its complaints procedure. The Chief Executive replied and insisted Mr X provide a copy of the Council’s response. Following further
    e-mails with Mr X the Chief Executive refused to respond to his complaint as Mr X had not been clear about which matters were for NPH to respond to and the Chief Executive believed the complaints were about the actions of the Council. The Chief Executive said NPH would not enter into further correspondence with Mr X about his complaint.
16. Mr X replied by e-mail on 2 June and attached a letter setting out his complaint about NPH. He said:
• He had rights to access the land as set out in a covenant attached to his property dated March 1980.
• The land had been used for parking by residents for over 20 years and so they had a right to a “parking easement by prescription”.
• NPH had misrepresented the use of the land when it applied for planning permission.
• NPH officers misrepresented facts about the land at the planning committee meeting.
17. On 25 and 26 June 2020 Mr X e-mailed the Council and NPH in response to a letter he had received about work on the development site. Mr X said he would not be moving his car as he had an established right to use the land for parking. Mr X also said he had a legal right of way over the land at all times.
18. The Council e-mailed Mr X on 2 July 2020 to say it had passed his concerns to NPH who would respond to his complaint. The Council told Mr X that “it might be helpful if you re-iterate these in an e-mail to… [the] Chief Executive at NPH”.
19. The Chief Executive of NPH e-mailed Mr X on 2 July 2020. He said he understood the complaint was being dealt with by the Council. The Chief Executive went on to set out details of works NPH intended on carrying out including timescales. He advised Mr X that NPH and its contractors would not “be held liable for any damage if you decide to park there, you will do so acknowledging the risk is yours”.
20. Mr X replied to the Chief Executive on the same day and copied the Council in to the e-mail. Mr X said:

“… you have informed me that my complaint in respect of Northampton Borough Council's Planning Department is being dealt with by Northampton Borough Council. However, I sent you a completely separate complaint highlighting areas of concern about your organisation, staff (and their lies) and ignored planning policies. [The Council] informed me that NPH are responsible for answering many of the issues, yet you continue to play adolescent games only seen in school playgrounds by ignoring my complaint. And on what basis? Ransom and bribery. Yes, you won't respond to me because I will not send you a copy of a personally addressed letter from another organisation…These games are further exacerbated by the 'I said it first' stance you now wish to adopt in relation to the commencement of works in the car park in question”.

21. Mr X went on to say that he would not be moving his car during work planned by NPH and it would be liable for any damage caused. Mr X also said that by demolishing existing garages NPH had started construction of the new properties.
22. NPH’s Chief Executive e-mailed Mr X on 3 July 2020. He said:

“I find your arrogance, ignorance and rudeness quite unacceptable. The fact that you clearly do not understand or want to accept what you are told and resort to inappropriate correspondence is not something we are prepared to countenance.

“NPH have been absolutely clear with you that you have made a formal complaint about a planning decision. This quite correctly is being dealt with by the LPA. In plain English – this is not a matter for NPH to respond to.

“You have subsequently made a complaint to NPH – about the planning application! We have again been clear, a complaint around planning is not within NPH’s jurisdiction.

“You have made allegations against members of staff, which in law is defamation. If you persist, I will have no alternative but to take legal action against you for libel.

“You have made statements of your rights by prescription to the car park. Your legal advisors will confirm that when you bought the property you did not purchase the car park. There are no “preserved rights for a right to park” and at no time has there ever been a specific space formally designated for your personal use.

“NPH have been quite clear that the work we are currently undertaking is essential maintenance work to the retaining wall and is not the start of the proposed new development. If you chose to park your vehicle on what is not adopted highway and when we have advised you against it and confirmed we will not be held liable this is your responsibility. Neither NBC or NPH can or will be held responsible for any damage. Despite your threats I have confirmed we will not accept any responsibility”.

23. Mr X replied to the Chief Executive to say he was unhappy that the response wasn’t in line “with the advertised standards you publish on your website”. Mr X said he had set out his rights over the land and “no attempt has been made to resolve the matter, either by you or anyone else from your company”.
24. Mr X has sold his house and now lives elsewhere. He says he felt compelled to move because of the loss of parking and the way he was treated by NPH.

My findings

Planning application, access rights and parking

25. I have stopped my investigation into the way the Council dealt with the planning application and issues regarding Mr X’s rights to access the land. This is because Mr X has now moved away from the area and so there is no continuing injustice to him.
26. I understand that Mr X feels he was compelled to move because of the actions of the Council. However, I could never say this was solely due to any fault by the Council.

Response to Mr X’s complaints

27. There is fault in the way the Council and NPH dealt with Mr X’s complaints. Mr X complained to both the Council and NPH at the same time and so there should have been a co-ordinated response provided. This could either be in the form of a joint letter or two separate letters acknowledging individual responsibility for different aspects of the complaint. Failure to co-ordinate a response to Mr X’s complaint is fault.
28. This was compounded when NPH’s Chief Executive insisted Mr X provide him with a copy of the Council’s response before going on to refuse to respond to the parts of the complaint which applied to NPH. This was despite the Council’s response stating that parts of the complaint would need a response from NPH.
29. As Mr X made the complaint to the Council and NPH at the same time and in the same e-mail there should have been nothing to prevent information being shared. If there was any doubt about Mr X’s consent for information being shared then his consent should have been sought. Failure to share information was fault.
30. In any case Mr X had written to NPH on 2 June setting out his complaints about its actions and so there were no grounds for it to reject his complaint. Mr X’s complaint was about rights of access to the land and his claims to have parking rights. NPH is responsible for managing the land in question, which is owned by the Council, and so it was responsible for responding to Mr X’s complaint. If NPH was unwilling to respond the Council should have stepped in as it ultimately owns the land and is responsible for the actions of NPH.
31. Instead of dealing with Mr X’s complaint NPH threatened him with legal action for defamation. This is fault.
32. Mr X’s frustration with NPH’s refusal to deal with his complaint comes across clearly in his correspondence. He is entitled to put forward his views about the conduct of the Council, NPH and their officers within certain parameters.
33. NPH was entitled to refute Mr X’s allegations about its conduct and the conduct of its officers. However, the appropriate way to do this was through the complaints process rather than threatening Mr X with legal action. The impression given by the e-mail sent by the Chief Executive is that NPH was trying to silence Mr X rather than address his genuine concerns about his legal rights to use and access the land.
34. There may be occasions where an individual says something in correspondence or in person to the Council or NPH which might potentially be defamatory or abusive. In response the Council should set out what has been said that it considers unacceptable and explain the possible consequences of making future statements of a similar nature. In this instance NPH’s Chief Executive threatened to take legal action without explaining what he considered to be defamatory within Mr X’s correspondence. This is fault. This meant Mr X did not have an opportunity to respond with evidence supporting his claims or to withdraw his comments.
35. There is an unequal balance of power between the person and the state. This balance of power was made more uneven in this instance due to the fact the threat of legal action came directly from NPH’s Chief Executive. It is understandable that this would have caused Mr X a great deal of distress which was compounded by the NPH’s repeated refusal to respond to his complaint.

Agreed action

36. The Council has agreed to take the following action to remedy the injustice to
    Mr X caused by the fault I have identified:
• Write to Mr X to apologise for threatening him with legal action and failing to respond to his complaints about the actions of NPH.
• Pay Mr X £250 for the distress caused to him and unnecessary time and trouble he was caused by NPH refusing to deal with his complaint.
37. The Council should take this action within four weeks of my final decision.
38. The Council should also take the following action to improve its services:
• Produce a joint working agreement to ensure effective communication and cooperation between the Council and NPH on complaints.
• Review information sharing arrangements between the Council and NPH so that information about complaints can be shared easily.
• Arrange complaint handling training for all senior staff and staff responsible for responding to complaints at NPH and the Council.
39. The Council should take this action within six months of my final decision.

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Final decision

40. I have completed my investigation as I have fault causing an injustice. The action I have recommended is a suitable way to remedy this.
41. I have stopped my investigation into Mr X’s complaints about the way the Council dealt with the planning application. This is because he has moved away from the area and so there is no continuing injustice to him.

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Investigator's decision on behalf of the Ombudsman