Summary: We will not investigate Mrs X’s complaint about the Council deciding to apply a Community Infrastructure Levy (CIL) to her property, not changing its decision, and how it handled her complaint. Mrs X had a right of appeal to challenge the CIL liability decision to the Planning Inspectorate which it was reasonable for her to have used. In any event, there would not be enough evidence of Council fault leading to the CIL liability to warrant an investigation. We do not investigate council complaint-handling where we are not investigating the core issues giving rise to the complaint.

The complaint

1. Mrs X and her partner are building a house for them to live in. She complains:
1. the Council has incorrectly applied a Community Infrastructure Levy (CIL) to the build when as ‘self-builders’ they should be exempt;
2. the Council has refused to change its position that the CIL is due;
3. an officer involved in the CIL matter also dealt with the second stage of her complaint about it.

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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. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b), as amended) The Planning Inspector acts on behalf of the responsible Government minister.
4. We 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. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered information from Mrs X, relevant online information about the CIL process, and the Ombudsman’s Assessment Code.

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My assessment

6. The CIL is a surcharge some councils impose on new development in their areas. The surcharge only applies if a council has a CIL policy, with details and rates on the charges applied. Most new development creating new floor space of 100 square metres or more is likely to be liable for a charge. Some developments may be eligible for relief or exemptions. Exemptions include developments by ‘self‑builders’. National government CIL information defines a self-builder:

‘If the necessary qualification requirements are met and the application process is completed within required timescales, an exemption from the CIL will be available to anybody who is building their own home or has commissioned a home from a contractor, house builder or sub-contractor. Individuals benefiting from the exemption must own the property and occupy it as their principal residence for a minimum of 3 years after the work is completed’.

7. CIL decisions attract statutory rights of appeal to the Planning Inspectorate. The Inspectorate deals with appeals against decisions of liability for CILs. Mrs X had a right of appeal to the Inspectorate against the Council’s decision that she is liable for the CIL payment. It would have been reasonable for her to use that appeal right if she disagreed with the Council’s decision as she had a professional agent acting for her, who should have been aware of the relevant appeal process.
8. Even if we were to exercise discretion to consider the complaint, irrespective of the appeal right, we would not investigate. There is not enough evidence of Council fault resulting in the CIL liability to have justified an investigation. National government information on the CIL process to seek a self‑build exemption says:

‘There is a set process which requires 4 steps to be undertaken within the required timescales. Failure to follow the set procedures within the required timescales will mean that the exemption will not be obtained […] and a full levy liability will be incurred’.

9. Mrs X says her agent made a mistake on their CIL documentation, advising the Council theirs was not a self-build. Incorrect information was provided to the Council at the first step of the process. It was not fault by the Council which resulted in Mrs X not complying with the CIL self-build exemption process. It is the responsibility of the developer or their appointed representatives to be aware of and follow the relevant CIL processes. The Council’s position is that once Mrs X’s development commenced without the necessary self‑build exemption process in place, it is required in line with national legislation to collect the CIL because the development has then incurred the full levy liability. There is not enough evidence of fault by the Council here, resulting in Mrs X becoming and remaining liable for the CIL payment, to have warranted us investigating.
10. Mrs X complains about the Council officers who were involved in handling her complaint. We do not investigate councils’ internal complaint-handling in isolation where we are not investigating the core issues giving rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of the complaint.

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Final decision

11. We will not investigate Mrs X’s complaint because:
• she had a formal right of appeal to challenge the CIL liability decision at the Planning Inspectorate, which it was reasonable for her to have used; and
• in any event, there would not be enough evidence of fault by the Council leading to the CIL liability to warrant an investigation; and
• we do not investigate councils’ complaint-handling where we are not investigating the core issues giving rise to the complaint.

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Investigator's decision on behalf of the Ombudsman