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Doncaster Metropolitan Borough Council (20 009 327)

Category : Transport and highways > Rights of way

Decision : Upheld

Decision date : 27 Apr 2021

The Ombudsman's final decision:

Summary: Mr X says there was an error in a legal document he completed to make a compensation claim against the Council. The Ombudsman discontinued investigation of this complaint because Mr X did not suffer an injustice that warrants a remedy from the Ombudsman.

The complaint

  1. Mr X submitted a claim for compensation from the Council following a compulsory purchase of land by the Council. Mr X says he had an easement right in the land. He completed a claim form for compensation but says the form incorrectly referred to the location of the land. Nonetheless, Mr X completed and sent the form to the Council. He says the Council then lost the form and so he was excluded from the compensation process.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
  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:
  • it is unlikely we would find fault, or
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or
  • it is unlikely we could add to any previous investigation by the Council, or
  • it is unlikely further investigation will lead to a different outcome, or
  • we cannot achieve the outcome someone wants, or
  • there is another body better placed to consider this complaint, or
  • it would be reasonable for the person to ask for a council review or appeal.

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

  1. 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

  1. I considered the complaint and background information provided by Mr X as well as the Council. I discussed matters with Mr X by telephone. I sent a draft decision statement to Mr X and the Council and invited the comments of both parties on it.

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What I found

  1. The Council compulsorily purchased land and Mr X says he has an easement right over the land. The Council provided documents on the acquisition of the land to Mr X in December 2019 including information on how to claim compensation for those entitled to claim compensation for their interest in the land.
  2. Mr X says there was a significant error in the form because it incorrectly referred to the location of the land. But he completed the form and sent it to the Council by recorded delivery.
  3. Mr X claims the Council lost the form and so he was excluded from the compensation process.
  4. Mr X contacted a senior officer within the Council’s legal department in late December 2019 as this was the named officer on the documents he had received. He says the officer told him the form was incorrect but the Council then refused to send new or amended documents.
  5. Mr X and his wife, whom I shall refer to as Mrs X, then sent a counter notice to the Council in the spring of 2020. Mr X says he did so because he found out a neighbour had received a general vesting declaration from the Council whereas he did not.
  6. The Council provided an email it sent to Mrs X in June 2020. The email referred to a code of conduct complaint. The email said there were two matters raised by Mrs X, namely:
        1. That she was entitled to be served a copy of the general vesting declaration and that she had not received a copy; and
        2. that she had served a valid counter notice to the general vesting declaration which had not been dealt with correctly.
  7. The Council said Mrs X did not meet the criteria for whom a general vesting declaration would be served under the Compulsory Purchase (Vesting Declarations) Act 1981. One of the criteria is ‘a person who has claimed a compensatable interest in the land following notice of confirmation of the compulsory purchase’.
  8. The Council said Mrs X did not have sufficient standing to serve a counter notice and so it could not deal with her correspondence under the Act.
  9. This response did not address Mrs X’s claim that she and Mr X had sent the compensation claim form in December 2019.
  10. Mr and Mrs X made a formal complaint to the Council in September 2020. Amongst other things, they complained that the documents sent to them in December 2020 contained incorrect facts and their request to the Council to reissue the form had been refused. They complained the Council lost the claim form they submitted and then claimed they were not entitled to compensation.
  11. The Council responded to this complaint in October 2020. Its response did not address either Mr and Mrs X’s claims the compensation form had errors or that it lost their claim for compensation.

Finding

  1. It is clear the Council considers Mr and Mrs X did not submit a compensation claim. I cannot establish whether the Council received the document from Mr and Mrs X in December 2019. Mr and Mrs X have proof of postage which can show the document was sent. But I cannot now establish, on the balance of probabilities, that the Council received the document and, having done so, misplaced it. The Council had the opportunity to respond to Mr and Mrs X’s claims that it misplaced the document but it failed to respond. It is this failure to respond that amounts to fault.
  2. And the injustice?
  3. I do not find Mr and Mrs X suffered a degree of injustice because of the Council’s failure to respond to their complaint that now warrants a remedy from the Ombudsman. It would have been clear to Mr and X before they made their formal complaint that the Council had refused their claim. It was then for them to seek to enforce any legal interest they had in the land by taking legal action against the Council.
  4. The finding of fault with the Council’s response does not alter the fact that the remedy for their claim lies in legal action against the Council. My view on injustice is also influenced by the fact the Ombudsman cannot determine whether Mr X was entitled to compensation.
  5. I have considered whether it is reasonable to expect Mr and Mrs X to take legal action against the Council. Mr X says it is unreasonable to expect him to seek a judicial review of the Council’s actions because of the cost. But I consider it is reasonable to expect them to take legal action. If Mr and Mrs X were denied compensation they are entitled to then a claim for financial loss is a matter more suitable for the courts to resolve than the Ombudsman.

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Final decision

  1. There was fault by the Council because it did not respond to Mr and Mrs X’s claim that it misplaced a document. However, this fault did not cause Mr and Mrs X a significant injustice that warrants a remedy from the Ombudsman.

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Investigator's decision on behalf of the Ombudsman

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