Summary: Mr C complained the Council failed to investigate his concerns about a change of use, failed to keep him up-to-date and failed to respond to his letter to the Chief Executive. There is no fault in how the Council considered the change of use issues. The Council failed to keep Mr C up-to-date or make clear it had delegated a response to his letter to the Chief Executive to one of its planning officers. That caused Mr C to go to time and trouble to pursue his complaint. An apology to Mr C and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complained the Council:
• failed to properly consider a change of use of a property close to him;
• failed to keep him up-to-date during the enforcement investigations; and
• failed to respond to his letter to the Chief Executive.
2. Mr C says failures by the Council mean he has been deprived of his right to information and consultation.

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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 an injustice, we may suggest a remedy. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mr C disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1) and 26A(1), as amended and 34(3))
4. 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

5. As part of the investigation, I have:
• considered the complaint and Mr C's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr C 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

Use classes

7. The Town and Country Planning (Use Classes) Order 1987 (as amended) puts uses of land and buildings into various categories known as 'Use Classes.' This says residential institutions such as residential care homes, hospitals, nursing homes, boarding schools, residential colleges and training centres are classed as C2.
8. Class C3 covers dwellinghouses and is formed of three parts:
• C3(a) covers use by a single person or a family (a couple whether married or not, a person related to one another with members of the family of one of the couple to be treated as members of the family of the other), an employer and certain domestic employees (such as an au pair, nanny, nurse, governess, servant, chauffeur, gardener, secretary and personal assistant), a carer and the person receiving the care and a foster parent and foster child;
• C3(b) covers up to six people living together as a single household and receiving care e.g. supported housing schemes such as those for people with learning disabilities or mental health problems; and
• C3(c) allows for groups of people (up to six) living together as a single household. This allows for those groupings that do not fall within the C4 HMO definition, but which fell within the previous C3 use class, to be provided for i.e. a small religious community may fall into this section as could a homeowner who is living with a lodger.
9. Class C4 covers houses in multiple occupation. These are small shared houses occupied by between three and six unrelated individuals, as their only or main residence, who share basic amenities such as a kitchen or bathroom.

What happened

10. Mr C lives near a property which was previously used as a residential property. In April 2019 Mr C became aware of changes taking place at the property to provide accommodation for five adults who would each receive support from carers throughout the day and night. Mr C contacted the Council because he believed this meant the property was being developed into a care home which would change the use category.
11. The Council contacted the operator of the property to obtain some information about the proposed use. The Council received some limited information at first which suggested a change of use had occurred. The Council told the operator of the property that was its view. The operator of the property disagreed and provided details of case law which it advised supported its view the property was being used as supported living and therefore fell within the same use class. The Council visited to inspect, obtained some more information from the operator of the property and took its own legal advice. Following that the Council was satisfied the property remained in the same use class.
12. Mr C had contacted the Council by letter in April, May and August 2019 about the developments at the nearby property. Mr C has also telephoned the Council. In February 2020 Mr C also brought a letter to the Council addressed to the Council’s Chief Executive. A planning officer from the Council wrote to Mr C on 5 February 2020, explaining the Council’s view that developments at the property did not constitute a change of use. The planning officer referred to Mr C’s letters in April, May and August 2019.

Analysis

13. Mr C says the Council failed to properly consider the change of use for the property he complained about. Mr C says the property was previously a C3 use as a residential property. Mr C says because several different people not from the same household are now living in the property and receiving care it should be classed as a C2 property. I set out the use categories relevant in this case in paragraphs 7-9 of this statement.
14. The evidence I have seen satisfies me the Council acted on the concerns Mr C raised by initially advising the owner of the property it considered a change of use had occurred. When the operator disputed that and provided more information I am satisfied the Council properly considered that information by visiting the site to inspect the usage of the property, took legal advice and considered case law. Following that consideration the Council was satisfied the property was being used in accordance with class C3(b) and therefore no change of use had occurred. I recognise Mr C disagrees with that view. However, as I said in paragraph 3, it is not the role of the Ombudsman to comment on the merits of a decision reached without fault. As the Council has properly considered the usage of the property before deciding a change of use has not occurred I have no grounds to criticise it.
15. Mr C says the Council failed to keep him up-to-date with what was happening with its investigation. The evidence I have seen satisfies me Mr C initially contacted the Council with concerns about developments at the property in April 2019 and made further contact by letter with the Council in May and August 2019. It is also clear Mr C telephoned the Council on a number of occasions to obtain an update. It should not be for Mr C to go to time and trouble to have to find out what is happening with a concern he has raised with the Council. The Ombudsman would expect the Council to provide regular updates during enforcement investigations. Failure to do that in this case is fault. As far as I can see Mr C was not given any clear advice about the position the Council was taking in relation to the change of use issue until February 2020. I appreciate the planning issues were complex. However, the documentary evidence shows the Council was taking action on the concerns raised by Mr C in respect of the use of the property. If the Council had told Mr C about the action it had taken this might have satisfied Mr C the Council was taking his concerns seriously. In the absence of any clear advice given to Mr C about what action the Council was taking I am not surprised he felt the Council was not taking his concerns seriously.
16. Mr C says he hand-delivered a letter to the Council’s Chief Executive on 3 February 2020 and did not receive an acknowledgement or response. The Council says its normal procedure is for letters to the Chief Executive to be passed to the relevant department for response. The Ombudsman would not criticise that process and this is a process followed by most councils. However, the Ombudsman would expect any delegated response to make clear the letter has been passed to that person for response on the Chief Executive’s behalf.
17. In this case the Council cites the planning officer’s letter of 5 February 2020 as its response to the issues Mr C had raised. I accept the Council’s letter of 5 February 2020 addresses Mr C’s concerns about the property he wrote to the Chief Executive about. However, the Council’s letter refers to the points raised in Mr C’s previous letters and then lists those letters. That does not include the letter of 3 February 2020. Nor does the letter tell Mr B it is provided as a response to his letter to the Chief Executive. In those circumstances it is not surprising Mr C believed his letter to the Chief Executive had been ignored. Failure to make clear the Council’s response of 5 February 2020 was intended partly as a response to Mr C’s letter to the Chief Executive and that the planning officer had been asked to respond on the Chief Executive’s behalf is fault. That led Mr C to believe his correspondence had not been dealt with and led to him going to time and trouble to pursue his complaint.
18. So I have found fault as the Council failed to keep Mr C up-to-date with what was happening with its enforcement investigation by only providing updates when Mr C contacted the Council, delayed telling them about the outcome of the enforcement investigation and failed to explain the Council’s response of 5 February 2020 was also a response to his letter to the Chief Executive. Taking into account my view there is no fault in how the Council handled the issue of whether there had been a change of use I consider Mr C’s injustice is limited to the time and trouble he had to go to pursuing his complaint. As remedy I recommended the Council apologise to Mr C. I also recommended the Council remind enforcement officers of the need to keep the person who has complained about planning breaches up-to-date with what is happening during an enforcement investigation. The Ombudsman would consider 4-6 weekly updates satisfactory. The Council has agreed to my recommendations.

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Agreed action

19. Within one month of my decision the Council should:
• apologise to Mr C; and
• send a memo to enforcement officers to remind them of the need to provide regular updates during any enforcement investigation to those who have raised concerns.

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Final decision

20. I have completed my investigation and found fault by the Council in part of the complaint which caused Mr C an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman