6.1 26B Procedure for making complaints

(1) Subject to subsection (3), a complaint about a matter under this Part of this Act must be made –

(a) in writing, and

(b) before the end of the permitted period.

(2) In subsection (1)(b), “the permitted period” means the period of 12 months beginning with –

(a) the day on which the person affected first had notice of the matter, or

(b) if the person affected has died without having notice of the matter

(i) the day on which the personal representatives of the person affected first had notice of the matter, or

(ii) if earlier, the day on which the complainant first had notice of the matter.

(3)  A Local Commissioner may disapply either or both of the requirements in subsection (1)(a) and (b) in relation to a particular complaint.

Section 26B inserts a time limit for a member of the public to bring their complaint to the attention of the Ombudsman. Its intention is two-fold: to provide us with the best opportunity of arriving at a robust, evidence based decision on complaints about recent events and to ensure fairness by enabling us to decline an investigation into historic matters, which could and should have formed the basis of a complaint to us far sooner.

This should not be used to exclude all complaints that are outside the 12 month time limit. When deciding whether to investigate a late complaint we should consider the two tests for historical allegations (see below). The two tests should be applied regardless of the seriousness of the allegation or the claimed injustice. Nor should it be used to exclude the investigation of legitimate cases where the injustice could clearly be considered to be ongoing. In such cases, we can more sensibly rely on our general discretion to limit the scope of an investigation where appropriate to do so.

When considering representations from members of the public who claim not to have been aware of our existence, please be mindful that awareness of the LGSCO scheme is not universal. Many people have limited knowledge of local authority structures and what their entitlement to public services may be. Where they have attempted to engage a local authority’s corporate complaints procedure and not been directed to us, it is not reasonable to assume they should have known of our existence.

The time bar imposed by 26(B) is silent in relation to complaints from or on behalf of people who may have lacked or continue to lack capacity. It says nothing about how the concept of ‘had notice of the matter’ applies in such cases. In those cases, where we decide it is appropriate to impose some restrictions on the time period we are looking at, we should not use 26(B) but, instead, use our general discretion afforded to us by 24A(6).

In all cases the decision and reasons about whether to exercise discretion or not should be clearly recorded in the decision itself or, if not, within notes and analysis. This should be kept under careful review throughout the course of an investigation.

6.2 When does the 12 month period run from?

The 12 month period runs from the day the person affected had notice of the matters alleged in the complaint i.e. the maladministration complained about.

Examples

• If planning permission was granted by the council several years ago but the complainant only later discovered that a member taking part in that decision had a personal interest, the 12 months will run from the date of the complainant’s discovery.
• If the complainant had been waiting for housing from 2011 to 2012, but only later found out that this delay was due to the council’s failure to comply with its allocations policy, the 12 months will run from the date of the complainant’s discovery.

6.3 What do we mean by “making the complaint”?

The person affected must have made the complaint (and not simply produced background correspondence) to the Ombudsman within the 12 months. They may ask a local councillor to refer the complaint to the Ombudsman on their behalf. If the complaint to the councillor is made within 12 months of the date that the complainant first had notice of the matter, and we are satisfied they asked the councillor to refer it to the Ombudsman, we should accept it even if the councillor delays.

6.4 When might we exercise discretion to investigate a late complaint?

The reasons for exercising discretion to investigate (or not) must be noted on the file and detailed in the decision. The following guidelines should be taken into account.

In R v Local Commissioner for Administration, ex parte Bradford Metropolitan City Council (1979) QB287 in the Court of Appeal, Lord Denning said:

“time bars are not to be enforced rigidly against a complainant where justice requires that the time be extended and his complaint heard”.

It may not have been reasonable for the complainant to have come to us within 12 months if s/he:

• was ill or through some other incapacity was unable to act in time;
• was taking the complaint through the body’s complaints procedure;
• believed that action was being taken on the complaint by the council or its contractors;
• believed a solicitor or other adviser was taking up the complaint on his/her behalf;
• has not at any time allowed the matter to rest for more than a few months.

The above is not an exhaustive list.

Ignorance of the Ombudsman’s existence needs to be looked at carefully as we have been in existence for more than 40 years. But, as stated above, if the PA has language or learning difficulties, or they have not been resident in the UK all their life, it might be appropriate to exercise discretion.

Similarly, if the complainant’s awareness was raised by media coverage of an LGSCO Focus Report, this would be a factor to take into account.

It may also be relevant to consider whether there might be a wider injustice caused if we do not investigate.

6.5 Continuing fault

Some administrative actions are “continuing” (eg a complaint about the continuing failure to take enforcement action for a breach of planning control). If the complaint is about an action or omission which continued over a period of time (failure to take enforcement action over a sustained period) we may take the view that the 12 months does not begin until the end of the period. But if there have been, eg repeated complaints to the council over a period of time, or the period of alleged failure is very lengthy, it may be appropriate to separate parts of the complaint. This is particularly the case where there has been a significant period without the complainant taking any action to pursue the matter and it can be assumed from this that s/he has accepted the council’s position. Or it may be appropriate to exercise discretion for the earlier part in order to make sense of the complaint.

Examples on the exercise of discretion

• The complainant lost an education admissions appeal last year and accepted the result. But this year a friend’s child was admitted on appeal in similar circumstances – IN because the complainant only just found out about the alleged maladministration.
• The complainant contacted his ward councillor four years ago about noise from his neighbours and asked the Councillor to contact the Ombudsman for them.  The councillor referred the complaint to officers, who took no action and for a long time the complainant assumed he would simply have to put up with it. Recently he complained to the council again, officers have now been to visit him and have agreed there is a nuisance – IN, because of the complaint made to the councillor four years ago.
• A complaint was made to the council that incorrect advice given by a highways officer had caused the complainants to make a planning application which could not have succeeded, and was rejected on appeal. The council carried out a thorough investigation, but it was almost four years before the complaints procedure was finally concluded, in part because of lengthy negotiations. IN, as the complaint had been made promptly once the planning appeal and the council’s complaints procedure had run their course.

6.6 Restricting the scope of the investigation

The complainant said that she had experienced problems of antisocial behaviour by her neighbours for 15 years and had been complaining to the council but it had done nothing effective. The problems had escalated in the last two and a half years since the neighbour’s teenage son had been convicted of a drugs offence. The investigation was restricted to the last two and a half years (i.e. from when the problem increased). It could be assumed that the complainant had accepted the council’s decision to take no action about the earlier problems.

6.7 No good reason to exercise discretion

The complainant objected to his neighbour’s planning application which was approved by the council more than two years ago. The complainant says his objections were not taken into account, but he has only now complained to the Ombudsman. The council informed the complainant of his right to come to the LGSCO in its response to his complaint at the time – OUT, unless there are good reasons for the late complaint (e.g. health, learning disability, personal circumstances, mistaken belief that the council or a representative was dealing with the complaint).

6.8 Historical allegations

Historical allegations are where so much time has elapsed since the fault complained of occurred that an investigation is likely to be impeded by the passage of time.

In all cases we will consider each complaint on its merits and take account of the unique circumstances of each case. However, we should be cautious about starting an investigation into historical allegations. The main reasons are:

• Evidence: The further away in time an investigation takes place from the events to be investigated, the more difficult it may be to establish the material facts with reasonable confidence. In older cases we are less likely to be able to gather sufficient evidence to reach a sound judgement. Even if some evidence is available, we would need to be particularly careful to ensure it is reliable, and provides a full picture.
• Context: In many cases we cannot apply current standards, guidance, or professional expectations to historical situations. It is therefore likely to be more difficult to reach a firm and fair conclusion on whether there was maladministration.
• Remedy: In historical cases it is likely to be more difficult to achieve a meaningful remedy, given the length of time that has already passed, the difficulty in establishing causality over longer time periods, and changes in the situation of the parties.

Given the above factors, we should not dis-apply the requirements of s26B in historic cases unless we have very clear reasons for doing so that satisfy the following two tests:

• we are confident that there is a realistic prospect of reaching a sound, fair, and meaningful decision, and
• we are satisfied that the complainant could not reasonably be expected to have complained sooner.

Whilst not fettering our discretion or creating a blanket policy, a presumption will exist  against exercising discretion unless there are clear and compelling reasons for doing so that satisfy both of the above tests.

The considerations relating to reliable evidence, historical context, and realistic chances of a meaningful remedy have even greater importance when considering historical allegations of serious wrongdoing and should not be set aside because the complaint relates to significant injustice, including allegations of abuse and neglect. The seriousness of the allegation does not remove the obligation to consider the two tests above in relation to all historic cases.