Summary: The Ombudsman will not investigate this complaint about how the Council dealt with a complaint. This is because it is not a good use of public resources to investigate complaint-handling by itself and because the Council’s complaint-handling did not in itself cause Mr X a significant enough injustice for the Ombudsman to investigate.

The complaint

1. Mr X complains the Council did not deal properly with a formal complaint he made, because the Council delayed responding while its contractor’s staff were furloughed during the Covid-19 restrictions on working. Mr X states this caused him distress and inconvenience.

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The Ombudsman’s role and powers

2. This complaint involves events that occurred during the Covid-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Principles of Good Administrative Practice during Covid”.
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’. 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 injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)
4. It is not a good use of public resources to investigate complaints about complaint procedures, if we are not dealing with the substantive issue.

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How I considered this complaint

5. I considered the information Mr X provided. I shared my draft decision with Mr X and considered his comments on it.

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What I found

6. A contractor for the Council was doing road works. Mr X alleges an incident occurred in which an employee of the contractor’s acted towards Mr X in a way that might amount to a criminal offence. Mr X contacted the Council and its contractor at the time. The incident was also reported to the police, who were still considering the matter when Mr X complained to the Ombudsman. Mr X is clear his complaint to the Ombudsman is not about that incident; rather it is about how the Council handled a later complaint.
7. Mr X complained to the Council that he had not received a response about the incident. The Council started dealing with that complaint. The contractor then used the government’s Coronavirus job retention scheme to furlough its staff. The Council told Mr X it could not progress its complaint investigation because the contractor’s staff could not contribute to the investigation while furloughed. The contractor’s staff returned to work after eight weeks. One week later, the Council sent Mr X a response to his complaint about the incident.
8. Mr X and the Council disagree about whether the contractor’s employees could deal with such matters while furloughed. Mr X argues the Council used the furloughing as an excuse to avoid dealing with the complaint. He wants the Council to accept fault. He also says if the police decide not to prosecute the contractor’s employee, the Council should deal with the incident as a disciplinary matter.

My analysis

9. This is a complaint about how the Council dealt with a complaint. The substantive underlying issue that led to the complaint – the incident with the contractor – is not part of Mr X’s complaint to us. I would add that, even if Mr X complained to us about that incident, it is unlikely we would investigate it, or expect the Council to investigate it, while the incident was subject to a police investigation.
10. As paragraph 4 explained, we do not usually investigate complaints about complaint-handling in isolation. The Council’s not progressing the investigation while the contractor’s staff were furloughed added around nine weeks to the time Mr X waited for a response to his complaint. That was undoubtedly frustrating. However, I do not consider the delay and Mr X’s disagreement with the Council’s reasons for the delay in themselves caused Mr X a significant enough injustice to justify making an exception to our usual practice of not investigating complaint-handling in isolation.
11. Mr X hopes his complaint might achieve disciplinary action against the contractor’s employee. We would not be able to achieve that particular point because the law forbids the Ombudsman becoming involved with personnel matters. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)

Mr X’s response to my draft decision

12. Commenting on a draft of this decision, Mr X reiterated his argument that the Council was at fault. However, we do not necessarily have to investigate every complaint of fault. We can use our discretion not to investigate if, for example, we consider the alleged fault did not cause a significant enough injustice or we consider investigating a complaint about complaint-handling would not be a good use of resources.
13. Mr X also disputed that investigating this complaint would not be a good use of the Ombudsman’s resources. He argued that his rights, which he believes the Council breached, ‘are independent of how long it takes either the council or the Ombudsman to investigate, however trivial you might consider a complaint to be.’
14. However, the law does not support that view. The Court of Appeal has held:

‘Given the Ombudsman’s focus on investigating maladministration which causes injustice (see s21(1) LGA 1974) [now section 26(1)] and the limited resources inevitably available to the Ombudsman, it is clearly right that he must prioritise the investigation of those complaints which appear to him to involve significant injustice as opposed to those which do not…’

That judgment went on to say it was clear ‘…that the ombudsman has a very wide discretion when deciding whether to investigate as the Parliamentary Ombudsman also does. The “no significant injustice” test clearly falls within that discretion.’ (R (on the application of Abernethy) v Local Government Ombudsman [2002] EWCA Civ 552, paragraph 14)

15. So the Ombudsman has wide discretion to decide whether to investigate a complaint and such decisions can take account of the proper use of the Ombudsman’s resources. Therefore I remain satisfied with the reasons I have given above for not investigating this complaint.

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Final decision

16. The Ombudsman should not investigate this complaint. This is because it is not a good use of public resources to investigate complaint-handling in isolation and because the Council’s complaint-handling did not in itself cause Mr X a significant enough injustice to warrant investigation by the Ombudsman

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Investigator's decision on behalf of the Ombudsman