Summary: We will not investigate this complaint that the Council has failed to ensure a health centre is provided within the complainant’s residential estate, contrary to the aims of the associated legal agreement. This is primarily because there is no realistic prospect of carrying out a sound investigation into events which occurred more than a decade ago.

The complaint

1. Mr X complains the Council has failed to ensure a health centre is provided in the residential estate where he purchased a property, contrary to the aims of the associated legal agreement for that development.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. We can consider whether there was fault in the way an organisation made its decision. But if there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. And the Ombudsman has the general discretion to decide whether to start an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

6. I considered:
• information provided by Mr X.
• information about the relevant planning applications for the development on the Council’s website.
• the Ombudsman’s Assessment Code.

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My assessment

7. I appreciate Mr X is unhappy that a health centre has not been provided within the residential development where he lives.
8. But I do not consider the Ombudsman should start an investigation for the following reasons.
9. The outline planning permission and associated legal agreement (which details the terms for the provision of a health centre) date back to 2010. Therefore, any investigation into the Council’s preparation of the legal agreement is likely to be impeded by the passage of time. For example, we are unlikely to be able to gather sufficient evidence to reach a sound judgement, and even if some evidence is available, we would need to be particularly careful to ensure it is reliable, and provides a full picture. And in many cases, we cannot apply current standards, guidance, or professional expectations to historical situations. Given these difficulties, there is no realistic prospect of reaching a sound decision on whether the Council acted with fault at that time.
10. And more recently, I see no evidence of fault in the way the Council reached its decision that the developer had complied with the terms of the legal agreement (i.e., that it had taken reasonable steps to market the health centre and used all reasonable endeavours to secure the disposal of the site for that purpose).
11. The principle of “caveat emptor” (let the buyer beware) is also relevant here. The rule places the responsibility on the buyer of a property to carry out all necessary due diligence before purchase. The legal agreement would have been available to Mr X before he purchased his property, and it clearly sets out the circumstances under which the intended health centre site can be used for another purpose. We would therefore exercise our general discretion not to investigate Mr X’s concerns about the agreement, as it was open to him to check it before he bought his property.
12. Finally, we cannot achieve the outcome Mr X is seeking, because we have no power to direct the Council to ensure a health centre is provided within his local area.

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Final decision

13. We will not investigate Mr X’s complaint for the reasons details above.

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Investigator's decision on behalf of the Ombudsman