Summary: Mr X complains about the time taken to validate and determine his planning applications by the Council. Mr X said it has taken the Council significantly longer than average and says the Council discriminated against him. Mr X also complains about how the Council handled his complaint. We have concluded our investigation having made a finding of fault by the Council. Although we could not see any evidence Mr X had been discriminated against, the Council could have better handled Mr X’s complaint. The Council has agreed to the recommendations proposed.

The complaint

1. Mr X complains about the time taken to validate and determine his planning applications. Mr X says it has taken the Council significantly longer than average and says the Council has discriminated against him. Mr X also complains about how the Council handled his complaint.

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The Ombudsman’s role and powers

2. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
3. The law says we cannot normally investigate a complaint when someone can appeal, or could have appealed, to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal or have appealed. (Local Government Act 1974, section 26(6)(b))
4. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector can consider appeals about:
• delay – usually over eight weeks – by an authority in validating or deciding an application for planning permission
• a decision to refuse planning permission.
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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How I considered this complaint

6. I considered information provided by Mr X, and his comments in response to our original draft decision. I also considered the information provided by the Council in response to our enquiries. Mr X and the Council were both invited to comment on my draft decision statement, and I considered all comments that were submitted.

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What I found

Relevant guidance and legislation

Planning permission

7. The Town and Country Planning Act 1990 gives local authorities the power to decide if planning applications should be approved, refused, or approved subject to planning conditions.
8. Councils must consider applications on their planning merits and make decisions in line with relevant policies in their development plans unless material planning considerations suggest otherwise. Material considerations include issues such as overlooking, previous appeal decisions, layout and density of the building, access to the highway and the protection of ecological and heritage assets.
9. The statutory time limits for applications for planning permission are set out in article 34 of the Town and Country Planning (Development Management Procedure (England) Order 2015 (as amended). They are 13 weeks for applications for major development, 10 weeks for applications for technical details consent, and (from 1 August 2021) applications for public service infrastructure development, and 8 weeks for all other types of development (unless an application is subject to an to an Environmental Impact Assessment, in which case a 16 week limit applies).

The Equality Act 2010

10. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
11. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. The ‘protected characteristics’ referred to in the Act are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

Principles of good administrative practice

12. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction “Principles of Good Administrative Practice”. We issued an addendum in response to the COVID-19 pandemic; “Good Administrative Practice during the response to Covid-19”. This shows we expected similar standards from councils, even during crisis working. Our expectations of councils include:
• Explaining and responding to any delays proactively
• Dealing with people helpfully, promptly and sensitively, taking account of their individual circumstances
• Stating the criteria for decision making and giving reasons for decisions
• Explaining clearly the rationale for decisions and recording them
• Operating an effective complaints procedure, which includes offering a fair and appropriate remedy when a complaint is upheld.

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What happened

13. I have included a summary of some of the key events, this is not intended to be a comprehensive account of everything that took place.
14. Mr X submitted Planning Application 1 in early November 2019. The Council wrote to Mr X later in November 2019 to advise him that his application did not include sufficient information, nor the correct fee to make it valid. The Council received the information and fee to make the application valid in early January 2020. The Council wrote to Mr X in mid-January 2020 to acknowledge this. The Council issued a decision on this application in early March 2020. Mr X appealed the Council’s decision in May 2020 and the Council issued its appeal decision in November 2020.
15. Mr X submitted Planning Application 2 in early December 2020. The Council wrote to Mr X toward the end of January 2021 to advise him that his application did not include the correct fee to make it valid. The Council also informed Mr X that insufficient evidence had been provided but acknowledges that this did not make Mr X’s application invalid. The Council received the correct fee on the same day thus making Mr X’s application valid. The Council wrote to Mr X in in mid-February 2021 to acknowledge this. The Council issued a decision on this application toward the end of March 2021. Mr X appealed the Council’s decision in September 2021.
16. The Council says it was experiencing a significant upturn in the volume of planning applications which resulted in a significant queue of work, and significantly increased the time it was taking to validation and determine applications. The Council says because of this, it sought to publicise the increased timescales for validation and determination at the point of application, by informing applicants in their acknowledgment letter.
17. Mr X submitted Planning Application 3 in mid-September 2021. The Council wrote to Mr X in early October 2021 to acknowledge receipt of his application. The Council also informed Mr X that unprecedented application submissions meant that allocating and validating applications was taking up to six weeks, which would also delay the time taken to issue a decision. The Council issued a decision on this application in mid-January 2022. Mr X appealed the Council’s decision in January 2022.
18. Mr X submitted Planning Application 4 on mid-November 2021. The Council wrote to Mr X in mid-November 2021 to acknowledge receipt of his application. The Council also informed Mr X that unprecedented application submissions meant that allocating and validating applications was taking up to four weeks, which would also delay the time taken to issue a decision. The Council issued a decision on this application in mid-February 2022. Mr X appealed the Council’s decision in March 2022.

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Analysis

Determining Mr X’s planning application’s

19. As per paragraph 8, the statutory time limits for planning applications are 13 weeks for applications for major development, 10 weeks for applications for technical details consent, and (from 1 August 2021) applications for public service infrastructure development, and 8 weeks for all other types of development (unless an application is subject to an to an Environmental Impact Assessment, in which case a 16 week limit applies).
20. Where a valid application has not been determined within the relevant statutory period (or such other period as has been agreed in writing between the local planning authority and the applicant), the applicant has a right to appeal to the Secretary of State against non-determination.
21. Mr X could have appealed to the Planning Inspectorate if the Council had not made a decision within the relevant determination period. I consider it reasonable to expect Mr X to have used these rights of appeal, so the Ombudsman has no jurisdiction to investigate this part of his complaint.
22. Mr X also complains the Council, when it made a determination on Planning Application 4, did so upon inaccurate information. Any complaint about the Council’s planning decision could have been appealed to the Planning Inspectorate. From the evidence available to me, I can see that Mr X appealed to the Planning Inspectorate in March 2022. The Ombudsman cannot investigate when someone has appealed to the Planning Inspector.

Discrimination

23. Mr X says the Council discriminated against him when it processed his planning applications, given that each application took on average longer to validate and determine than other applications. I consider that Mr X’s complaint about a pattern of unfair treatment to be separable from the existence/use of rights of appeal for each individual application. Although the Planning Inspectorate could consider an appeal about delay, it would not consider a complaint about discriminatory behaviour.
24. The Council says that staffing issues during the period impacted its ability to validate and determine applications. Mr X disputes this point and says delays should have impacted all applications, but it is only his which have taken longer. The Council says it proactively amended its acknowledgment letter to inform applicants about the delays and to better manage their expectations. It should be noted that this is good administrative practice by the Council in proactively managing applicants’ expectations.
25. The Council acknowledges that the timescales for progressing Mr X’s applications, in particular when checking for validity, were longer than normal. The Council has apologised, and it has recruited additional staff to help attend to the backlog of applications it has.
26. As per paragraph 10, the Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010.
27. Whilst I have not been able to substantiate why Mr X’s applications, on average, took longer to validate and process than other applications, I have not seen any evidence of differential treatment based on any of the nine protected characteristics. Further, I cannot see that any of Mr X’s applications included any personal information, beyond his gender, that the Council could have identified to have discriminated against him. I am satisfied the Council followed a proper decision-making process when it considered each of Mr X’s applications and I therefore do not find the Council to be at fault.

How the Council handled Mr X’s complaints

28. Mr X says the Council did not investigate his complaint regarding discrimination. I can see the Council considered Mr X’s complaint regarding discrimination at stage 2 of its complaint process. The Council acknowledges Mr X’s allegation of discrimination, and concluded that it could not substantiate his claim, and that any delays in processing his applications were due to reasons set out in paragraph 22. Whilst I have found that the Council did consider Mr X’s complaint about discrimination, it could have investigated Mr X’s complaint in more detail, for example by enquiring whether he was treated any less favourably because of a protected characteristic.
29. Mr X also says the Council did not follow its complaints process. Mr X brought a complaint to the Council in April 2021; the Council acknowledges that it did not record or process Mr X’s complaint correctly. Mr X contacted the Council again in January 2022 and the matter was immediately escalated to stage 2 of its complaints process.
30. After the Council escalated the matter to stage 2 of its complaint process, it says the investigation was delayed due to information it was waiting on internally and due to personal matters concerning the investigating officer. The Council also says that issues concerning the Council at a senior level impacted its ability to conclude Mr X’s complaint.
31. The Council should have recorded and processed Mr X’s complaint when it was first brought before it; this would have been good administrative practice. Whilst it is understandable that sometimes personal issues may have an unavoidable impact on complaint handling, personal matters concerning staff should not have delayed concluding Mr X’s complaint for as long as it did. The Council did not conclude Mr X’s complaint until April 2022, one year after he originally raised it with the Council. This is fault leading to an injustice and I have proposed recommendations below.

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Agreed actions

32. To resolve the matter, the Council has agreed to:
1. Pay Mr X an amount of £150 in recognition of the time, trouble and uncertainty the Council’s complaint handling procedure had on him.
2. Explain what it will do to ensure staff make more focused and detailed enquiries when considering complaints about discrimination.
3. Explain what it will do to ensure complaints are reallocated or attended to when key staff members are unable to respond within agreed timescales.
33. The Council has agreed to complete action a within one month of the Ombudsman’s final decision and actions b-c within two months of the Ombudsman’s final decision.

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Final decision

34. I have concluded my investigation having made a finding of fault by the Council. Whilst the Council has acknowledged that some of Mr X’s applications took longer to process than usual, I have not seen any evidence that he has been discriminated against. The Council however could have better handled Mr X’s complaint and it has agreed to the recommendations proposed.

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Investigator's decision on behalf of the Ombudsman