8.1 Introduction

S26(6)   A Local Commissioner shall not conduct an investigation under this Part of this Act in respect of any of the following matters, that is to say-

(a)   any action in respect of which the person affected has or had a right of appeal, reference or review to or before a tribunal constituted by or under any enactment;

 (b)  any action in respect of which the person affected has or had a right of appeal to a Minister of the Crown or the National Assembly for Wales; or

(c)   any action in respect of which the person affected has or had a remedy by way of proceedings in any court of law:

Provided that a Local Commissioner may conduct an investigation notwithstanding the existence of such a right or remedy if satisfied that in the particular circumstances it is not reasonable to expect the person affected to resort or have resorted to it.

The role of an Ombudsman is distinct from other ways to resolve a disputed situation. We were created to provide a free, simple and straightforward way for people to ask for independent investigation into whether fault has caused injustice and to try to remedy that injustice. In setting out our jurisdiction, this section of the Act recognises certain other bodies have distinct and different roles from ours. It seeks to clarify how we should work where a complainant has or had an alternative route for resolving a dispute. 

It stops us investigating in three importantly different (from each other) alternative scenarios – where the matters complained about have been or could be considered by other routes – specifically:

• tribunals
• appeals to a Government minister (or a body which uses their powers); and
• courts

It is intended to ensure people do not ask us to intervene where they have already been able to, or where it would have been reasonable for them to, raise the matters through those routes. It also gives us discretion to decide to investigate, even where there is an alternative route, where we decide the person couldn’t reasonably use (or have used) it. However, once an alternative route has been used, we do not have any discretion and so the complaint is OUT.

This section was therefore put into our legislation to stop our work from ‘trespassing’ on the work of these alternatives. In other words, it prevents us investigating matters others were created to consider or have the ability to consider as part of their own jurisdiction or powers. It stops our investigations providing an unintended ‘second bite’ at issues capable of being raised through those routes instead.

Each of the s26 sub-clauses (a)-(c) is deliberately differently worded, referring to different ‘rights’ applying to each type of body. Each therefore applies in slightly different ways as explained below. It’s important to consider which applies to the circumstances of a particular complaint. The fact that a remedy will be incomplete will not prevent the issue from being outside our jurisdiction where a complainant has already pursued court action.

When deciding whether s26(6) prevents us from investigating a complaint, or certain parts of a complaint, the first thing to decide is which of the three clauses apply:

• Did/does the person have a right to raise the matters complained about at a tribunal? OR
• Did/does the person have a right of appeal about the action to a Minister of the Crown? OR
• Did/does the person have the opportunity of obtaining a remedy concerning the action in a court of law?

Note the differences between the coverage of each clause (a)-(c):

1. Tribunal: covers right of appeal, reference or review (but no reference to remedy)
2. Minister: covers right of appeal (but no reference to remedy)
3. Court: covers remedy (but does not refer to appeal, reference or review)

For a) and b) whether there is a right of appeal is a matter of fact and must be considered in every case (see below).

“Reference” and “review” mean that s26(6)(a) is wide in scope and includes not only matters which could (or did) form the subject matter of an appeal to the tribunal but also any matters which fell or may fall to the tribunal for determination during the course of the tribunal proceedings. This may include, for example, matters concerning the conduct of the parties during the tribunal process, which the tribunal is likely to have powers to resolve itself.”

“Remedy” (which relates only to court proceedings) refers to when someone has the chance of achieving a particular (often restorative) outcome from the alternative route. The Act’s use of this word only in connection with (c) ‘court of law’ means it does not also apply to clauses (a) and (b). This means s26(6)(a) and (b) stop us investigating when someone could have / has asked a tribunal or minister to consider a matter, even if they could not achieve a remedy for them in relation to that point. 

When a complainant has pursued one of the three routes in s. 26(6), it is important to decide whether the substance of what was pursued via one of those routes is the same as the matters complained of to the LGSCO. This is considered in section 8.3.

When considering a complaint which is about matters that are, in substance, different from those pursued via one of the three other routes specified in s. 26(6), but still have a connection to matters covered by previous proceedings such that we’re concerned about our ability to investigate, we should also consider whether to use our general discretion not to investigate.

1. The “general principle” as set out in the Bradford case: We are conscious about not wanting to cross into areas which a Tribunal, Court or government Minister have already looked at, or which have been raised in proceeds before them. This is the case even where it could be said that those matters appear separable from matters complained about to us;
2. Whether the matters complained about to us were actually raised before the Tribunal, Court or Minister, and if so, what they said about those matters;
3. Whether the matters complained about to us could have been raised before the Tribunal, Court or Minister;
4. The scope of the Tribunal, Court or Minister’s powers and whether they could have looked at the matters complained of, noting in any case the principles arising from cases such as PH and Field;
5. The specialist expertise of the Tribunal, Court or Minister;
6. Whether there is any significant unremedied injustice which merits our involvement.

If we consider it appropriate to end an investigation on this basis, we should use Notes and Analysis to record our view of each of these points.

Section 26(6) is intended to ensure people do not ask the Ombudsman to intervene where they have already had recourse to an alternative remedy, or would be better served by doing so. Almost any decision by a public body is actionable in the courts. As we are publicly funded to decide complaints of maladministration causing injustice, we should not be unduly prescriptive in relying on the availability of alternative remedies. It should be noted that Judicial Review is a remedy of last resort. Unlike many alternative remedies, the LGSCO is free to use, does not normally require expert representation, and we do not impose costs on those whose cases we do not uphold.

Our emphasis should be on letting people know that where they have used a remedy listed in sub-sections a), b) or c), we no longer retain discretion to consider their complaint. Where an alternative remedy exists but has not been used, we would normally only expect someone to use it as an alternative where the appellate body has the expertise to decide the issue and the appeal will clearly provide the remedy being sought.

We should not conflate commonly used alternative remedies with more obscure means of redress which we may direct people to if we are satisfied there has been no maladministration by the BinJ. If – for example – someone approached the LGSCO alleging defamation, we may be able to look at the actions of the Council and arrive at a view on the extent to which they had or had not sullied someone’s reputation despite the availability of court action for defamation.

Similarly, we would expect a council to respond appropriately – either directly or through its insurers – to a claim for the costs of repairs to a vehicle as a result of an alleged failure to maintain a highway appropriately, despite an individual’s ability to action the matter through the courts so we may decide to look at the complaint.

Another example would be where someone may complain that bailiffs have failed to properly explain the charges they have levied in recovering a debt owed to a council. In such cases we would expect a local authority to satisfy itself that the charges were levied appropriately and provide an explanation, despite the complainant’s ability to bring the bailiff before a magistrate.

8.2 Three-part test

Section 26(6) requires us to consider three questions (see flow chart):

• is there an alternative remedy for the complaint,
• has it been used, and
• is it reasonable for the complainant to use it?

This chapter is set out under those three headings. These three questions must be kept in mind throughout our investigation.

We must be able to show how we have properly considered how our ability, and discretion to investigate is affected by the facts of the case as they apply to s26(6) (a)-(c) as relevant. Where relevant, a record must be made in the decision (statement of reasons) about firstly, whether an alternative route is/was available and secondly, why it is (or is not) reasonable to expect the complainant to use/have used it. 

In describing how we have had regard to jurisdictional bars and discretion, we should explain our reasons in terms that relate to the specific circumstances of the case. We should explain why we consider the complainant could have used/had access to using an alternative route, concentrating on the substance of the complaint to us.

Example 1: The complainant could have raised concerns about the council’s consultation with the young person as part of their appeal to the SEND Tribunal. They could reasonably be expected to have done so. The Tribunal could have considered whether the failure to do so had an impact on the appropriate provision.

Example 2: The complainant could have raised arguments about the council’s lack of effective signage concerning parking charges with the parking adjudicator as part of an appeal to the Traffic Penalty Tribunal. It would have been reasonable for them to do so. The adjudicator could have considered whether the lack of clear signage was a mitigating factor.

We may be challenged on the ground that either firstly, we failed to consider whether there was an alternative route or misdirected ourselves on the question, or secondly our decision to investigate or not to investigate was Wednesbury unreasonable.

We should let people know that where they have used a route listed in sub-sections (a), (b) or (c), we no longer have discretion to consider their complaint. Where an alternative route exists but has not been used, we would normally only expect someone to use it as an alternative where the relevant body has the expertise to decide the issue and the appeal will clearly provide the answer sought.

We should not confuse commonly used alternative routes with more obscure means of redress which we may direct people to if we are satisfied there has been no fault by the BinJ. If – for example – someone approached the LGSCO alleging defamation, we may be able to look at the actions of the organisation and arrive at a view on the extent to which they had or had not damaged someone’s reputation, making a finding of fault despite the availability of court action for defamation.

Similarly, we would expect an organisation to respond appropriately – either directly or through its insurers – to a claim for the costs of repairs to a vehicle as a result of an alleged failure to maintain a highway appropriately, despite an individual’s ability to action the matter through the courts so we may decide to look at the complaint. We can use our discretion, given in s26 (6)(C) to investigate in such circumstances.

Another example would be where someone may complain that bailiffs have failed to properly explain the charges they have levied in recovering a debt owed to a council. In such cases we would expect a local authority to satisfy itself that the charges were levied appropriately and provide an explanation, despite the complainant’s ability to bring the bailiff before a magistrate. We could decide to use our discretion under s26(6)(C) or because we could decide the complaint was about the council’s failure to satisfy itself, which is not in substance the same thing as the bailiff’s failures that could be raised in court.

8.3 Question 1 – Is there an alternate, relevant route?

Section 26(6) is in three parts:

A      Where the person has or had a right of appeal, reference or review to or before a statutory tribunal (s26(6)(a))

A statutory tribunal is one which is set up by or under an Act of Parliament. Many are supervised by the Council on Tribunals (CoT). The full list is contained in Schedule 1 of the Tribunals and Inquiries Act 1992 as amended.

A tribunal may consist of one person.

S26(6)(a) prevents us from investigating matters where someone has or could have had a tribunal consider them. Tribunals have wide powers to consider issues they regard as relevant. That includes not only matters that are the main subject of an appeal (actual or potential) to Tribunal, but also other ancillary issues it could determine. This is likely to include, for example, issues relating to the conduct of the parties during proceedings. The tribunal is likely to have a range of powers to deal with complaints about the way a party has conducted itself during the tribunal process.

When deciding whether the matter complained about is outside our jurisdiction because of s26(6)(a), we need to carefully consider how closely related it is to the matters raised or capable of being raised at the Tribunal. We need to explain this in our statement of reasons (decision), setting out why we have decided someone has, or could have raised the matter with a tribunal. Where a complaint has several parts, we should ensure we explain this with reference to each part. It is important to be precise about the different elements of a complaint when doing so.

Note that s26(6)(a) (unlike s26(6)(c)) does not refer to a right of ‘remedy’ at tribunal. This means it applies to, and prevents us from investigating in situations where someone had a right or reference or review to or before a tribunal.

The main tribunals relevant to complaints to the Ombudsman are set out below

(i)  Information Commissioner

Freedom of Information Act, Environmental Information Regulations and associated Codes of Practice

 In order to promote compliance with this legislation, the ICO may:

• conduct assessments to check organisations are complying with the Act;
• issue undertakings committing an authority to a particular course of action to improve its compliance;
• issue practice recommendations specifying steps a public authority should take to ensure conformity to the Codes;
• serve information notices requiring organisations to provide the ICO with specified information;
• serve enforcement notices where there has been a breach of the legislation, requiring organisations to take (or refrain from taking) specified steps in order to ensure they comply with the law;
• issue decision notices detailing the outcome of the ICO’s investigation;
• prosecute those who commit criminal offences under the legislation.

It is only when using the powers to issue enforcement notices, decision notices and information notices that the ICO is a tribunal within the Administrative Justice and Tribunals Council (Listed Tribunals) Order 2007 (SI 2007/2951). In every other respect (including assessments of compliance) it is not. So in order to decide if there is an alternative remedy we need to be clear what remedy the person is seeking. (Note: even if there is no alternative remedy we may nevertheless decide not to investigate the matter under our general discretionary power (s24A(6) as the ICO is the best placed body to consider the issue).

Data Protection

The ICO also has power to take enforcement action against a data controller for breach of one of the six data protection principles in the Data Protection Act 2018. But it is NOT acting as a statutory tribunal if it does so.

If a complainant believes there has been a breach they may refer the case to the Commissioner to consider taking enforcement action. If we decide this would be a better route for the complainant we should exercise our general discretion under s24A(6) to discontinue.

Example

• A complainant made a subject access request to the Children’s Services Department of a Council regarding records of his placement as a foster child. The Council refused the request. The complainant was advised to approach the Information Commissioner, following which the matter was resolved informally. The decision not to investigate the complaint was made using our general discretionary power under s24A(6).

In some cases the person affected may take action in court in their own right under the Data Protection Act 2018.

What if the DPA complaint is incidental to another complaint which is wholly within jurisdiction?

If the breach of DPA is incidental to a more substantive complaint that is in jurisdiction, it may be appropriate to exercise discretion in the complainant’s favour. We should not require a complainant to make a complaint to the ICO for matters simply about whether a complainant’s personal data has been disclosed and we are investigating other related issues.

Example

• A complainant believes his amenity was not properly taken into account when the council approved an application for development next to his home. Part of his complaint is that the council breached his data protection rights and confidentiality by referring, on its website, to a letter he wrote to the planning office ‘in confidence’ raising concerns about the developer’s motives. In this case it was appropriate to exercise discretion to look at the whole complaint, as it was not considered reasonable to expect the complainant to make his complaint to two different bodies.

(ii)  Education appeal panels

These are set up under the School Standards and Framework Act 1998 to hear appeals against school admission and exclusion decisions. The Ombudsman normally considers it reasonable for a person aggrieved about an admission or exclusion decision to exercise their right of appeal to a panel.

The education appeal panel is a statutory tribunal but is also a body within the Ombudsman’s jurisdiction under section 25 LGA 1974.

When considering a complaint after an appeal has been rejected, there may be parts which relate to what happened at the appeal and parts which relate to the original admissions or exclusions process (for example something about the way a decision was taken by the admissions authority which the appeal panel did not consider). Governing bodies which act as admissions authorities are within jurisdiction as are appeal panels considering appeals against decisions of governing bodies. However, schools with academy status are not in jurisdiction. We can consider neither the school’s decision nor that of the appeal panel. (Exception: Academies which have converted during the admissions process – seek advice from your manager if you have one of these).

There may also be some complaints about education admissions matters which cannot be the subject of an appeal. Examples might be the administration of waiting lists or failure to determine an application for a place We could consider such complaints provided they are not otherwise excluded on jurisdictional grounds.

Appeals relating to permanent exclusions are the responsibility of the council (or Academy Trust in the case of an Academy which would be outside our jurisdiction). It is the role of the council to set up the independent review panel (IRP) to review the decision of a governing body not to reinstate a permanently excluded pupil. Complaints relating to the IRP would be within jurisdiction.

(iii)  Office of the Schools Adjudicator

The Office of the Schools Adjudicator (OSA) helps to clarify the legal position on admissions policies in schools. It does not get involved in decisions about school admissions for individual pupils. Its main powers are:

• ruling on objections to and referrals about state school admission arrangements
• settling disputes over school organisation proposals
• making decisions on requests to vary school admission arrangements
• determining appeals from maintained schools against the intention of the local authority to direct the admission of a particular pupil
• resolving disputes concerning the transfer and disposal of non-playing field land and assets.

The Schools Adjudicator is not a statutory tribunal, and its decisions are not in jurisdiction. So decisions not to investigate a matter because it could be referred to OSA are made in exercise of our general discretion under s24A(6).

(iv) Housing Benefit Appeals

Applicants dissatisfied with the way housing benefit is calculated have a statutory right to appeal to the First-Tier Tribunal (Social Entitlement Chamber) with a further appeal (on a point of law) to The Upper Tribunal.

While the First-Tier Tribunal can consider appeals against the majority of decisions taken by a local authority on housing benefit entitlement there are some exceptions. So the following matters are not subject to appeal and would be within our jurisdiction:

• discretionary housing payment decisions;
• which partner is treated as the claimant for housing benefit;
• who may claim housing benefit on behalf of someone unable to act for themselves;
• when and how housing benefit is paid (i.e. the method of payment, frequency etc);
• whether the council can make a payment ‘on account’ (an important protection for private tenants whose claims are delayed through no fault of their own);
• a suspension of benefit;
• the exercise of discretion about whether a housing benefit overpayment should be recovered
• the method of recovery of a housing benefit overpayment;
• the scope of local discretionary schemes (for example some councils operate local schemes that disregard income from war pensions).

Examples

• A complaint that the council had delayed in deciding a claim for council tax reduction – IN (no right of appeal)
• When housing benefit was eventually assessed, it was overpaid and the council is now seeking to recover it – OUT as this carries a right of appeal. But if the council failed to notify the claimant of her appeal rights, this might be a reason to exercise discretion.
• The council decided that overpaid housing benefit should be recovered from the complainant, because it believed she would have known that she was being overpaid, even though the overpayment was the council’s fault – OUT (right of appeal). But, if the council failed to notify the claimant of her appeal rights, this might be a reason to exercise discretion.
• The council suspended a claimant’s housing benefit but the complainant says it had no grounds to do. As a result he was evicted by his landlord for rent arrears. IN (no right of appeal against suspension).

(v)   Valuation Tribunals (VTs)

VTs are independent of both the Valuation Officer and the billing authority. They hear appeals about:

• a person’s liability to pay the council tax, or whether they are entitled to a discount, or whether the dwelling is an exempt dwelling;
• a completion notice issued by the local council for a dwelling. This notice shows the date the council believe the dwelling is/will be complete or substantially complete and from when council tax should be paid;
• a penalty notice imposed by the local council for failure to provide some information they have requested relating to council tax.
• a decision by the local authority that they are not entitled to council tax reduction or how much council tax reduction has been awarded under its local scheme.
• the exercise of discretion to waive council tax in addition to any reduction (so called ‘Section 13’ relief – from Section 13 of the Local Government Finance Act 1992 incorporated into the Local Government Finance Act 2012). The VT can consider individual appeals that the Council has not exercised discretion in accord with its discretionary scheme. In the above cases, the Tribunal cannot hear appeals about the contents of the council’s scheme, only about the way the scheme has been applied to the individual case.

Information about how to contact the relevant tribunal and the process is available.

(vi)  The Upper Tribunal (Lands Chamber)

The Lands Chamber replaced the Lands Tribunal in 2009. The main types of cases relevant to us are:

Compulsory purchase: disputed valuations of compulsorily purchased land or property.

Land compensation: Claims for compensation for loss of value arising from public works, such as noise nuisance from new roads. Or compensation for coal mining subsidence, coast protection works, reservoirs, and drainage works

Disturbance payments: disputes as to the amount offered for permanent or temporary displacement from land/property.

Restrictive covenants: Applications to lift or modify restrictive covenants on land, so that development or change of use can take place and applications for notices relating to the right to light.

Examples

• A complainant owned a property in disrepair which the council proposed to compulsorily purchase. He claimed that the property was in better condition than the council said, was seriously undervalued and that it was inappropriate for the council to compulsorily purchase it. OUT – he was advised to make his objections through the statutory consultation process and, if the purchase went ahead, to appeal to the Lands Chamber against the valuation.
• A complainant said that noise from a new road built close to his home caused disturbance to his family, and that his property was being damaged by vibrations from heavy traffic. OUT - the complainant was advised to claim compensation through the Lands Chamber
• The complainant owned two derelict buildings that she had planning permission to develop and lease a third (intact) building for a carpet business. She could not complete the planning permission when the council announced a regeneration scheme that involved demolishing the buildings, as her bank withdrew a loan needed for the scheme. She served a blight notice on the council but the council rejected it saying she had no ‘qualifying interest’ as defined by law, in any of the properties. IN - while she could have appealed it was not reasonable to expect her to do so as the council was right that she had no qualifying interest and an appeal could not therefore have succeeded.

(vii)  First-Tier Tribunal (Property Chamber), Agricultural Land and Drainage (AL&D)

This tribunal plays an important role in settling disputes and other issues between agricultural tenants and landlords, arising from tenancy agreements held under the Agricultural Holdings Act 1986. It also considers applications under sections 28 and 30 of the Land Drainage Act 1991, about certain drainage disputes between neighbours.

Example

• A neighbour discharged water into a land drain running beneath the complainant’s garden, causing flooding in the garden. The complainant asked the council to deal with this as nuisance. The neighbour claimed he had the right to discharge the water. OUT. The drain was private and the complainant was advised to appeal to the First-Tier Tribunal (Property Chamber) Agricultural Land and Drainage to establish whether the neighbour was within his rights to use the drain.

(viii)   The First-Tier Tribunal (Property Chamber) now hears appeals formerly heard by the Leasehold Valuation Tribunal

The tribunal considers disputes about the reasonableness of service charges under long residential leases. Either the tenant or the landlord may apply to the Tribunal for the determination. The focus of the Tribunal is the reasonableness of the charge. It cannot consider a complaint that the landlord has not done repairs or the services are of poor quality (although these issues may arise in challenging the reasonableness of the charge).

The Tribunal will also be able to vary leases and determine whether there has been a breach of covenant before the landlord forfeits a lease.

Where there is a complaint about the level of service charges for a long residential lease which could go to the Property Chamber, but the complaint relates solely to the failure to provide information about the service charges, exercise of discretion may be appropriate.

If the complainant is uncertain about whether to take proceedings in the Property Chamber or the County Court free advice on the most appropriate route is available from the Leasehold Advisory Service.

(viii) The First-Tier Tribunal – Property Chamber (Residential Property)

This chamber has five regional offices which provide an independent service for settling disputes involving private rented and leasehold property. The tribunal has powers to settle certain disputes which would otherwise have to be dealt with by the courts. It aims to provide easier and cheaper access to justice. While there is a scale of fees for some, but not all, types of dispute, there is no fee for dealing with disputes about the price payable for the acquisition of freeholds or lease extensions and market or fair rents.

The main types of appeals heard by the tribunal include improvement notices, prohibition orders or emergency prohibition orders, demolition orders, interim or final management or empty dwelling management orders and licensing of houses in multiple occupation.

Example

• The complainant lived abroad but owned a property in England. It had been used as a holiday home but, due to his wife’s ill health, the complainant had not visited for many years. The council advised him that complaints were being received that the property and garden were falling into disrepair, and that it would seek an Empty Dwellings Management Order if the property were not to be brought back into use. The complainant objected on the grounds that holiday homes were exempt. OUT – he could reasonably be expected to appeal to the Property Chamber. But his ability to attend the tribunal hearing would be a relevant consideration to the exercise of discretion.

(ix)  Adjudicators Appointed to the Traffic Penalty Tribunal (TPT) (formerly the National Parking Adjudication Service (NPAS) and (in London) the Parking and Traffic Appeals Service (PATAS) - known as London Tribunals since July 2015

The Traffic Management Act 2004 resulted in various regulations; the most relevant being:

• The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 (SI 2007/3483), and
• The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (SI 2007/3482).

In addition to parking enforcement, the Act gives enforcing authorities powers with regard to other contraventions, including bus lane and moving traffic contraventions. A full list of these powers is provided in Schedule 7 of the Act. These are explained in more detail in the Highways section.

The right of appeal to an Adjudicator on statutory grounds

If the complainant says the contravention did not occur, or that one of the other specified statutory grounds applies (see parking and traffic offences section), there is a right of appeal to the Adjudicator.

There is no right of appeal against an Adjudicator’s decision but a review may be granted in certain prescribed circumstances (set out in the appeals regulations).

The right of appeal on grounds of mitigating circumstances (parking only)

A parking Adjudicator can also consider whether, although the contravention occurred, there were mitigating circumstances not covered by the statutory appeal grounds.  If minded, the Adjudicator may refer the matter back to the council for reconsideration.

The appeal process is free, relatively informal and simple to use. An appeal can be made in writing but if an appellant wishes to make a personal appearance, this can be arranged outside normal working hours. There are also provisions outside of London for appeals to be heard within the area of any council which is a part of the scheme.

The Ombudsman takes the view that there would need to be an exceptional reason to exercise discretion to investigate a complaint where a right of appeal exists. But note that the appeal on grounds of mitigating circumstances relates to parking contraventions only and not other traffic complaints e.g. congestion charging.

Examples

A complainant said that he had been given a parking ticket but the council had not dealt properly with his representations as to why the penalty should be waived. He had continued to correspond with the council which eventually told him that he was out of time to appeal. The complainant had been correctly advised as to what his appeal rights were, his complaint was made on one of the statutory grounds for appeal and it was considered reasonable for him to have used them – OUT

Mr A incurred a parking penalty while driving a hire car. The council issued a PCN to the hire company which responded by providing Mr A’s details. The council did not reissue the PCN in his name until two months later. In the meantime he had contacted the council to make representations against the Notice and ask for further photographic evidence. The council did not reply. It could not accept his communication as representations against a PCN which was not yet in his name. IN – the council’s failure to inform him of this prevented him from making further representations when the PCN was reissued.

(xi) First-Tier Tribunal (Special Educational Needs and Disability) (SEND)

Appeals to the Tribunal may be made against:

• refusal to carry out a statutory assessment or reassessment, following a request;
• refusal to make an Education, Health and Care Plan (EHC Plan) after a statutory assessment;
• the special educational needs, special educational provision, school or other institution (or type of school or institution), specified in the EHC Plan or amended EHC Plan, or the fact that the EHC Plan does not name a school or other institution
• refusal to amend a EHC Plan following reassessment or an annual review;
• a decision to cease to maintain a EHC Plan; or
• discrimination in the provision of education (Equality Act 2010).

The SEND tribunal has the power to award costs if it is persuaded the council acted unreasonably in bringing, defending or conducting the proceedings and has a range of other case management powers to supervise compliance with tribunal rules and directions.

Examples

• A child with an Education Health and Care Plan complains the council has failed to name the school of their choice in the Plan. DISCRETION: If they have not appealed, we would normally expect them to use the right of appeal. No discretion if they have, so OUT – right of appeal to the First-tier tribunal.

  The council issues a final EHC Plan, naming a type of school (special). The council says it will name a specific school when a place becomes available. The parent does not appeal the failure to name a specific school because they agree with the type of school and trust the council will name a school soon. It then fails to do so and the parent complains to us. We can decide it was reasonable for the parent not to use their appeal rights at the time and therefore may bring the case IN. This is the type of case where we would want to consider whether to exercise our discretion depending on the circumstances of the case.

• A child has the need for speech and language therapy written into the educational part of their EHC Plan. The health trust does not have any therapists available so the child does not receive support for several months. IN – no right of appeal because this complaint is about failure to make provision set out in the EHC Plan and/or delay in making it. The council has ultimate responsibility to provide what is written as an educational need in the EHC Plan (but note the possibility of joint working with PHSO here)
• A parent complains the council did not tell them of their right of appeal when they complained about the content of a EHC Plan. IN – failure to notify of the right of appeal prevented them from appealing within the time limit.

Further details are given in the Casework  Guidance note on Special Educational Needs

Bodies which are not tribunals

The district auditor

Review panels set up as part of the statutory complaints procedures in respect of social services and children’s services matters only.

Safeguarding adult boards (SABs)These are now mandatory under the Care Act 2014 and their introduction is being phased in. They include representatives of the local authority, the NHS clinical commissioning group and the chief officer of police. Councils can appoint other members, such as housing authorities or provider organisations. Among their powers, SABs may hear appeals against decisions made by the LA on safeguarding, by the person affected or another interested party. Some decisions carry appeal rights, some of their decisions are IN jurisdiction and others OUT.

Education Transport Appeal Panels

Government guidance (non-statutory) says Local authorities should set up a two-stage review/appeals process against decisions on whether to provide assistance with transport to school. The appeal panel is not an independent tribunal so not an alternative remedy within s26(6). In considering the complaint, investigators should check the council’s appeal procedure complies with the Guidance.

District valuer

The district valuer may be asked to determine a dispute over the purchase price of a “right to buy” (RTB) dwelling house under s128 of the Housing Act 1985. Note: the Ombudsman would normally expect a RTB applicant to use the district valuer if there is a disagreement on the purchase price and so would terminate the complaint under s24A(6). RTB matters may also be determined in the County Court.

Where there is a right of appeal to a Minister of the Crown - S26(6)(b)

The main appeals are:

• Planning appeals including appeals against non-determination of a planning permission.
• Enforcement notice appeals.
• Appeals under the Highways Act about the recovery of expenses for making up highways.

The following are not rights of appeal. While they provide a complainant with the opportunity to refer a matter to a Minister this is only in the realm of a request to intervene, rather than to appeal about a specific decision or action and so are not caught by s26(6)(b):

• Applications to the Secretary of State for Health (s84 of the Children Act 1989) alleging a council’s failure to comply with a statutory duty under this Act.
• Objections to the Minister against compulsory purchase orders (CPOs) - this is because the Minister is not deciding an appeal but simply whether to confirm the order. Note: if the matters complained of could be put to the Minister and could affect the decision on whether to confirm the CPO, consideration should be given whether to discontinue under s24A(6).
• A request for the Secretary of State for the Environment to exercise intervention powers under s 164 of the Housing Act 1985. Where it appears that a tenant or tenants may have difficulty in exercising their right to buy effectively or expeditiously, the Secretary of State may step in and exercise RTB provisions.
• Complaints to the Secretary of State for Education that a school governing body has acted or proposes to act unreasonably or unlawfully in the exercise of its duties (s496, 497, Education Act 1996 and schedule 4, paragraph 10, School Standards and Framework Act 1998.)
• The power of the Secretary of State for Education to direct councils to provide transport to a school or college for sixth form learners 16 (s509AA(9)).
• Representations to the Secretary of State for the Environment in respect of a failure by the council to determine a Footpath Modification Order under Schedule 14 paragraph 3(2) of the Wildlife and Countryside Act 1981.

Where there is a remedy by way of proceedings in any court of law - section 26(6)(c)

Note:

This clause does not refer to the nature of any remedy available through the court.

The remedy must be against the body in jurisdiction, not a third party.

Do not be deflected by words such as “negligence” or “defamation”. Complainants may use such terms, but the action complained of will also be maladministration. The duty is on the investigator to define the complaint in our terms and not assume the complainant’s label is right. Even if it is, there remains the duty to consider discretion. Defamation claims can only be brought in the High Court and no legal help is available, so they are extremely costly.

S26(6)(c) does not apply where the complaint could have or has been raised in defence of an action brought by the council (See R v Local Commissioner for Administration ex parte Bradford Metropolitan City Council (1979).

But if the matter has been considered by the court it may be appropriate not to investigate under s24A(6). Exercise care here and consult your AO if in doubt. What orders were sought from the court and what did the court decide? Unless the situation is clear, you may need to ask for the court papers.

Where in the course of such proceedings the complainant has made a counterclaim against the council in relation to the subject matter of his complaint, s/he may be treated as having exercised an alternative remedy under s26(6)(c).

In deciding whether there is an alternative remedy, it is NOT relevant whether or not the proceedings would be likely to succeed. (See R v Commission for Local Administration ex parte Croydon London Borough Council (1989).

Legal advice on this matter can be found here.

Examples of statutory provisions that provide a specific right to go to court

Note: Time limits for taking action will often be stated in the part of the Act which gives the right to go to court.

Magistrates Court

In addition to its criminal jurisdiction the Magistrates Court acts as an appellate body in relation to a number of civil matters. For our purposes the main ones are

• Highways Act 1980 – ss 205- 211 apportionments under the Private Street Works Code carry a right of appeal to the Magistrates Court. The Magistrates Court can also make an order for the Highway Authority (HA) to repair a highway which is maintainable at the public expense (s56 Highways Act). As a first step the complainant must serve a notice of disrepair on the HA. If the HA responds with a notice within one month admitting it is liable to maintain the highway, the complainant may within six months apply to the Magistrates’ Court for an order requiring it to be put in proper repair. Where the HA does not respond to the complainant’s notice, the complainant may apply to the Crown Court direct. Similar provisions apply.
• Building Act 1984 – s55; Building Regulations. There is a right of appeal where a person is “aggrieved” by a council’s rejection of an initial notice, a plans certificate or a final certificate.
• Certain licensing provisions e.g. private hire vehicle licensing and hackney carriage licensing.
• Licensing Act 2003 s181 and Schedule 5 gives a right of appeal against licensing decisions to anyone aggrieved. This includes applicants AND those who made relevant representations in respect of an application. So a local resident has a right of appeal against the council’s decision to grant a licence or in respect of the conditions imposed on a licence if he/she made relevant representations in respect of the application. “Relevant representations” is defined in s18(6) of the Act.
• Environmental Protection Act 1990 – s82; an application by a “person aggrieved” in respect of statutory nuisances (see s9 of EPA for full list of statutory nuisances). The council can be joined in proceedings where action is taken against a neighbour. The respondent in such cases should be the perpetrator of the nuisance, and so this would not be an alternative remedy for our purposes unless the perpetrator is the local authority against whom the complaint has been made. This might, for instance, be where the nuisance comes from a council owned facility. In such cases it may be appropriate to rely on the existence of s82 as an alternative remedy which we would expect the complainant to use. Separately the council can also be joined in proceedings where action is taken against a neighbour.
• Environmental Protection Act 1990– s91; allows for an application to the court for an order for the council to remove litter, after giving notice to the council.

County Court

• Housing Act 1985 – s181; an application to deal with right to buy matters (subject to the district valuer’s jurisdiction to determine the value of a dwelling house under s128 of the Housing Act 1985. Note: in RTB matters where there is a complaint of delay by the council, the Ombudsman normally expects the complainant to use the procedure in s 153A of the Act “Tenants notice of delay”. The 153A tenant’s notice is not an alternative right/remedy under s26(6), but we may discontinue under 24A(6) and advise them to use this option.
• Housing Act 1996 – s204; contains a right of appeal on a point of law if the person affected is dissatisfied with the review of a decision on homelessness or has not been given a decision. The courts have held that such appeals are limited to errors of law (similar to a judicial review). (Ajilore v London Borough of Hackney (2014) EWCA Civ 1273)
• Secure Tenant of Local Housing Authorities (Right to Buy) Regulations 1994; disputes about tenants’ “Right to repair”.
• Appeals by private landlords against the service of Housing Act Notices.
• Data Protection Act 1998 (note the High Court also has jurisdiction in these cases):
  • s7(9); a complainant can apply to the court if s/he receives no reply to a request within the statutory timescale (currently 40 days) or believes the data controller has wrongly refused their request. The court may order the data controller to comply
  • s13; an individual who suffers damage by reason of any breach of the Act is entitled to compensation. This may include compensation for distress if (a) the individual also suffers damage by reason of the contravention or (b) the contravention relates to the processing of personal data for ‘special purposes’ (journalism or artistic/literary purposes)
  • s14; a complainant may apply to a court alleging that personal data relating to him/her is inaccurate. If the court is satisfied the data is inaccurate, it may order the data controller to correct, block, erase or destroy the data including other data that contains an expression of opinion based on the inaccurate data. The court can also order the data controller to notify third parties to whom the inaccurate data has been disclosed.
• Equality Act 2010 – s.113 Proceedings; allows individuals to make claims of discrimination to the County Court:
  • There is strict time limit of six months less one day for making discrimination claims. The time period runs from the day the act complained about took place
  • In deciding whether it is reasonable to expect someone to make a claim in the County Court we need to consider the following factors:
  • The extent to which someone is still in time to make a discrimination claim
  • The outcome someone is looking for – if they are looking for damages for unlawful discrimination that would be a matter for the court. However, if they are seeking service improvements and/or a remedy for personal injustice as a result of a body’s failure to make reasonable adjustments, that would be a matter we could consider.
  • The purported maladministration – is it failure to properly consider whether a reasonable adjustment is reasonable or a breach of the Equality Act? Only a court can determine whether a body has unlawfully discriminated against an individual. We can decide whether a body in our jurisdiction has acted with fault when considering requests for reasonable adjustments
  • The extent to which we could provide a remedy for the claimed injustice
  • Why the person has not already pursued a claim in the County Court. EHRC guidance says taking court action in relation to discrimination can be lengthy, expensive and draining.

Is the matter complained about a single issue or is it inseparably part of the complaint that has been made to us? If it is separable it should generally, taking account of the above factors, be dealt with by a more appropriate body e.g. the County Court. We need to be careful not to be seen setting a precedent.

General jurisdiction in tort and contract claims

Action in respect of civil wrongs (torts such as negligence, nuisance, and trespass) are usually heard in the County Court. So, too, would be claims for breach of contract. This is unless the damages claimed are substantial, in which case it will be the High Court. There is no hard and fast rule about the jurisdictional financial limits of these two courts. Regardless of the amount claimed, all proceedings can start in the County Court. A claim of say £50,000 would probably be transferred to the High Court, whereas a claim for £15,000 would probably stay in the County Court. So far as claims for personal injuries are concerned, the High Court will not consider those which are for less than £50,000.

Time limits for making claims in contract and tort are called ‘limitation periods’. Broadly, contractual claims must be made within six years from when the contract was breached. Claims in tort may be brought within six years of the damage suffered but personal injury claims must be brought within three years of the damage suffered (unless it is a child when the time limit is three years from their 18th birthday). Public procurement challenges are subject to a three-month time limit.

Crown Court

There is a right to apply to the Crown Court where a notice of disrepair of a highway has been served by a complainant on the Highway Authority under section 56 Highways Act 1980 and the authority has not responded.

High Court

Legality of Compulsory Purchase Order (CPO); judicial review; appeals from courts/tribunals on points of law; and traffic congestion orders.

There is a right to go to court for people who claim that their human rights under the European Convention on Human Rights have been breached by a public authority.

An application for judicial review may result in any of the following order(s) of the High Court:

1. An Order to force the council to carry out a duty e.g.: to remove obstructions from a highway. Note In Wyatt v Hillingdon 78 LGR (1978-79) the Court of Appeal held that an order could not be made to force the council to carry out its duties under the Chronically Sick and Disabled Persons Act 1970 to provide facilities for disabled persons.

2. A Prohibiting Order to prevent the council from taking particular action.

3.A Quashing Order questioning an unlawful decision.

4. A Declaration that the body concerned has acted contrary to the law.

5. An Injunction. This is an order by the Court either prohibiting the party to whom it is addressed from doing a particular act or requiring the party in question to perform a particular act. In Bradbury v Enfield LBC - CA, 1967 an injunction was granted to prevent a local authority from reorganising local schools without following the correct procedures.

6. Damages – but note it is not possible to bring a judicial review action simply to claim damages

The process and time limits:

The first legal step is the lodging of papers at court for permission to proceed. Failure to exhaust alternative remedies and appeals procedures will usually act as a bar to judicial review. (NB a ‘pre-action protocol’ applies to judicial review but taking action under the protocol is not ‘commencement of proceedings’.

Time limits for judicial review are very strict. Proceedings must be issued “promptly and no later than three months from the date when the grounds for the application first arose.” The Court’s power to extend the time limit is very restricted.

NOTE: Investigators should exercise caution when considering how reasonable it is to expect the person complaining to use the alternative remedy of Judicial Review.  It is expensive (legal costs may be up to £20,000 if the case goes to a full hearing), difficult to pursue as an unrepresented litigant, legal aid is now difficult to obtain and by the time the person affected has exhausted the council’s complaints procedure it is likely they are already out of time. See Question 3 below. The Courts have considered the suitability of judicial review as an alternative legal remedy and decided that complaining to the Ombudsman is generally more appropriate.

8.4 Question 2 – For 26(6)(C) has the alternative route been used?

The general rule

Where a complainant has exercised their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction. This is the case even if the appeal may not provide or have provided a complete remedy for all the injustice claimed. The case of R v The Commissioner for Local Administration ex parte PH (which was considered both in the High Court: 21^st December 1998, unreported, and the Court of Appeal: [1999] ELR 314) (“ex parte PH”) was concerned with a complaint made about a local authority’s failure to provide education for H. H’s mother had previously judicially reviewed the Council for this failure and the matter had settled. She then came to the Ombudsman seeking compensation. The Ombudsman told H’s mother that he had no jurisdiction to investigate because she had resorted to her remedy in court. Mrs H judicially reviewed the Ombudsman. In dismissing her application in the High Court Mr Justice Turner said…”

“It can hardly have been the intention of Parliament to have provided two remedies, one substantive by way of judicial review and one compensatory by way of the Local Commissioner. The essential feature of the legislation is the creation of a legal right to complain about a grievance, but in respect of which there had been no available form of redress whether through the common law or by means of judicial review. Where a party has ventilated a grievance by means of judicial review it was not contemplated that they should enjoy an alternative, let alone an additional right by way of a complaint to a Local Government Commissioner. It follows that in my judgment the Commissioner was correct when he concluded that he had no jurisdiction to investigate the Applicant’s complaint, and this application must be dismissed.”

When does an action begin?

This will usually be the application to the court for a summons or writ or the lodging of an appropriate appeal e.g. with the Secretary of State. With regard to an application for permission to seek judicial review, the Ombudsman, following leading Counsel’s advice, has decided that if a complainant has made an application to the Court for permission to take judicial review proceedings this is “resorting to the remedy” even if the application is rejected or withdrawn before the hearing. In such cases the Ombudsman cannot exercise his discretion to investigate.

For tribunal cases the action begins when the application is lodged, however in practice we cannot investigate from when the appealable decision was made (for example when a final EHC Plan was issued). 

Note: In judicial review the right is exercised when the complainant makes his/her application to the court. Issuing a Pre action Protocol is not making an application to Court, though the fact the complainant has done so is a relevant matter to take into account in considering whether it is reasonable to expect the person to resort to judicial review under s26(6)(c)

Misconceived proceedings

Where proceedings that have been taken are misconceived the Ombudsman retains jurisdiction. Misconceived proceedings are those where the action taken does not amount to the pursuit of an available right or remedy. For example, an application for permission to judicially review a council’s decision, claiming negligence by the council and seeking compensation for damage/injury would be misconceived because there is no jurisdiction to consider such claims in the judicial review court. Likewise, proceedings may be misconceived where for other reasons the appeal or other action is struck out by the court or a tribunal at a preliminary stage because there is no legal basis for the action. Misconceived proceedings would not include those that were simply hopeless on the merits, for example a planning appeal made on valid grounds but which was bound to fail on the facts.

Complaints where litigation or an appeal is commenced after the investigation has started

We cease to have jurisdiction once the litigation or appeal has started. The complaint should be discontinued under s24A(6) after checking to satisfy yourself that the proceedings are on the same point.

Complaints where the litigation or an appeal is proceeding and not finalised

Extra caution is required in these cases because it may be difficult to know whether any part of a complaint is capable of separation until the litigation is finalised. The advice in the paragraph below should be followed. Where there is uncertainty about the possibility of the litigation incorporating any aspect of the complaint, reference should be made to a manager.

When a complainant has pursued one of the three routes in s. 26(6), it is important to decide whether the substance of what was pursued via one of those routes is the same as the matters complained of to the LGSCO. This is not always a straightforward exercise and may require careful consideration. Sometimes, some elements of a complaint will have been pursued via one of the other three routes, while others have not, and it is important to carefully distinguish the different elements of the complaint in order to determine which elements the LGSCO has no jurisdiction to consider as a result of s. 26(6), and which it does. Additionally, it is not always straightforward to determine whether a matter pursued via the other route is the same as the matter complained of to the LGSCO. The courts have emphasised that answering this question requires you to look at whether the substance of matters pursued via the other route and the matters complained of to the LGSCO are the same. Different ways of thinking about this test include whether a matter forming part of a complaint is so closely connected to a matter raised via another route that they cannot be separated or whether the matter complained of was integral to the issues considered when the complainant pursued the other route. However, it is important to be cautious about relying on these different ways of considering this question – and investigators should always return to the question of whether any matter complained of is in substance the same as a matter raised by the complainant via one of the three routes specified in s. 26(6). 

Caution is needed to ensure that there is a properly justified decision for the separation of the complaint from matters pursued via an alternative route and there is no danger of the Ombudsman deciding matters which have already, directly or indirectly, or could have been, adjudicated on by a tribunal, minister or judge. It is essential to check the papers to ensure that this is the case. This will include any judgment, transcript or decision. Where there have been judicial review proceedings, the application to the court and any reply by the respondent are key documents. Where there is a suggestion that an element of the complaint may have been considered in this way it is advisable to look further into relevant correspondence or formal evidence.

Where the litigation has not gone beyond the initial stages of lodging papers at court/tribunal, there is less material upon which a decision about separation of a complaint might be taken. In cases of uncertainty, reference should be made to a manager or legal advice should be sought.

When considering whether the subject matter of a complaint is properly separable from a matter which has been the subject of ALR note that we do not have jurisdiction to investigate the consequences of a decision if the decision itself is excluded by section 26(6) of the 1974 Act (see the Hillingdon judgment). This applies to all parts of s26(6).

Misleading advice in planning cases

A complaint that a council has given wrong pre-application advice about the need for planning permission does not relate to any later refusal of planning permission for the same proposal. So Section 26(6)(b) will not apply to the issue of the wrong advice.

A complaint that:

• a council advised an applicant that no planning permission was required for their proposal;
• the applicant carried out the development in reliance on that advice;
• the council later told the applicant that planning permission was required;
• the applicant applied for planning permission but it is refused,
• is therefore within jurisdiction (even if the applicant appealed).

A complaint from an applicant who is misled by a council as to the need for planning permission but later is granted permission by the council (or on appeal) is also within jurisdiction. But consider whether the PA has suffered a significant injustice.

There may be cases where the misleading advice relates to being told by a council that planning permission is required but would be bound to be granted. It may be that the complainant then relies on that advice and buys the property but planning permission is refused. These complaints are also within jurisdiction. But in each case the reasonableness of the complainant in acting on the misleading advice needs to be considered.

We must distinguish between the delay inevitable in the process of appealing against a planning decision and a council’s delay in dealing with a matter prior to the decision on it

In cases where there is delay, inevitable or not, in the process of appealing the Ombudsman has no jurisdiction to investigate.

In R v The Commission for Local Administration ex parte Colin Field (1999) EWHC Admin 754 Mr Justice Keene said:

“I take the point that the statutory appeal to the Secretary of State against a refusal of planning permission provides no compensation for the delay which inevitably occurs. However, the fact is that wherever there is a right of appeal to a minister of the Crown ... there will inevitably be some delay if the right is exercised, as it often will be, and where there is such delay, loss may very well result as it has in the present case. Yet Parliament has chosen expressly to exclude jurisdiction on the part of the Local Government Ombudsman in such cases. It seems to me that in those circumstances Parliament must have contemplated that there would be situations where loss has been suffered and where no remedy for that loss would be provided and yet the Local Government Ombudsman would have no jurisdiction to intervene. I therefore do not find the argument based upon the lack of remedy through the statutory appeal to the Secretary of State persuasive on this particular issue.”

Grounds for rejection where a complainant has already resorted (or resorts after an investigation has begun) to an alternative right or remedy – s26(6), s24A(6) or both?

• Where the complainant had already resorted to an alternative right or remedy, the complaint should be rejected under s26(6).
• Where we have exercised 26 (6) discretion to investigate the complaint, but it appears during the course of the investigation that it is more appropriate for the complainant to exercise their alternative right or remedy, a decision to discontinue should be made under s24A(6). This accords with the decision of the Court of Appeal in R v Commissioner for Local Administration ex parte Croydon LBC (1989) 1 All ER 1033 (QBD). 
• Where the complainant actually resorts to an alternative remedy during the investigation, we have no jurisdiction to continue and must discontinue under s26(6).
• Where there is some separable element in the complaint which might not have been dealt with in the court proceedings, but there are reasons why the complaint should not be investigated, these should be explained. Reference should be made to s26(6) and s24A(6).
• Where the complainant disputes that the matter he complains about was dealt with in proceedings, it would usually be necessary to obtain the court papers to establish the facts.

The courts do not accept that it is legitimate to subdivide the elements of an ‘action’ for the purposes of s26(6) in order to defeat the parliamentary intention for s26(6). (R v Commissioner for Local Administration ex parte Field [1991] EWHC Admin 754).

Where the relevant legal proceedings have been instigated by the council

In these cases s26(6) would not apply. But we may still consider the exercise of discretion under s24A(6) (see above).

A decision to discontinue may be appropriate where the matter has been or might be litigated to such an extent that there would be no useful purpose to be served by investigation, or an investigation might stray in to matters decided or to be decided by the court.

8.5 Question 3 – Is it (or was it) reasonable for the person complaining to use the alternative route?

Even if there is a right of appeal, reference, review or remedy by way of proceedings in any court of law, s26(6) contains a “proviso” that the Ombudsman may conduct an investigation if in the particular circumstances it is not reasonable to expect the person to resort to it. (We refer to this as “exercising s26(6)(6) discretion”).

The Ombudsman’s discretion under s26(6) is wide, but it still needs to be regarded as an exception to the usual rule. This does not excuse a failure to consider it, or superficial consideration. In each case it must be considered carefully, taking account of all the circumstances of the complainant and the facts of the complaint. Discretion must not be exercised (or not exercised) automatically.

In every case the question to be asked is “Is it reasonable to expect this complainant in the circumstances of this case to use the alternative right or remedy?” A clear record of the decision to exercise discretion or not should be made in every case. This should be kept under regular review throughout the course of an investigation.

What factors should be considered?

When an appeal to a Minister or to a Tribunal is available about the actual subject of the complaint.

The Ombudsman normally expects the complainant to use that appeal. An exception would be where the authority should have informed the complainant about the right but failed to do so (and it is not possible to have the appeal heard now).

A complaint about the refusal of planning permission.

The Ombudsman usually considers it reasonable to expect complainants to appeal. This is even if there is a clear allegation of maladministration (e.g. bias by a planning officer or a member’s interest) because what most applicants want is to get the planning permission and Parliament has expressly provided the right of appeal as a means to that end.

The fact that a council has put a matter in the hands of its insurers.

This may indicate that the council considers a legal remedy may be available. But do not assume this is the case. We have to make our own assessment. And it is not relevant whether the council thinks it is reasonable for the person to go to court. That judgment is for us. Where discretion is not exercised on the main subject of the complaint a complaint about the handling between the council and insurer of a claim for damages will not usually be accepted.

Considering a complainant’s financial position

In some cases we may decide it is not reasonable to expect a complainant to pursue an alternative legal remedy if they are seeking a higher financial remedy than we would usually recommend but their financial position means they are unable to pursue legal action.

To reach a decision on a complainant’s financial position we should ask them whether they have the financial capability to pay for legal action, and if not, their reasons why.

If a complainant tells us they can afford an alternative legal remedy, we are likely to decide it is reasonable for them to pursue one. In the Assessment Unit we would close these cases as outside jurisdiction and discretion not exercised. In the Investigation Unit we would discontinue on the same basis. 

We should consider any reasons the complainant provides to why they may be unable to afford legal action and if this means it would be unreasonable to expect them to pursue an alternative legal remedy.

We should not ask the complainant to provide any financial information as evidence in reaching this decision.

There are no specific criteria to when we may decide a complainant cannot afford to take legal action and our consideration should be on a case by case basis. We are likely to consider a complainant being on a low income, or being in difficult financial circumstances, as a good reason not to expect them to pursue an alternative legal remedy.

The complainant’s financial circumstances are but one factor to consider and balance alongside other relevant factors and should not take primacy over other considerations.

The availability of legal help, help at court, and legal representation (formerly legal aid).

This is relevant to the decision whether to exercise discretion. If the complainant is not funded in this way we should take into account the costs the complainant is risking against the benefits s/he is seeking. The higher the ratio of costs to benefit, the more likely discretion is to be exercised. If legal help has been requested but refused, the reason for refusal may be relevant.

See the Legal Aid Agency website for more detailed information

Where discretion is exercised to investigate the main subject, a complaint about the handling of the insurance claim will usually be accepted for consideration.

The nature of the case makes it unreasonable to expect the person to go to court.

An example of this would be where a young child or vulnerable person would be required to give evidence.

Small claims up to £10,000

There is a simple procedure in the County Court for dealing with small claims. (site gives free step-by-step instructions on how to make a claim in the County Court.) Usually, solicitors are not required, so that the only costs will be the court fees. The website contains information about these. Fees are based on a sliding scale depending on the value of the claim. Fee remission is available for claimants on a low income). It is also possible to make a money claim on line.  If the fees are high relative to the monetary value of the claim, it may not be reasonable to expect the person to go to court. Check the up-to-date court costs that would be involved (see link).

The possibility of court proceedings arising during an investigation would be relevant – e.g. if the complainant tells you s/he has already instructed a solicitor and is considering legal action.

Unrecovered costs and expenses

Where a statute has set up a specific right of appeal, the fact that the appellate body does not have power to award costs is not generally a ground for exercising discretion. This is on the basis that Parliament would have made a provision for the award of costs had that been its intention. The principle that there might be situations where a loss has been suffered and where no remedy for that loss would be provided, yet the Ombudsman would not have jurisdiction to intervene has been confirmed in the Courts. - R v The Commissioner for Local Administration ex parte PH (sometimes ex parte H) 1998 (Ex parte PH).

Some reasons why we might exercise discretion under s26(6)

• Where the complainant was unaware of the right of appeal and the authority failed to advise them of it.
• Where the complainant was prevented by absence, illness or some other incapacity from resorting to appeal.
• Where there is no possibility of bringing an out-of-time appeal and there are good reasons why the right was not exercised earlier.
• Where the legal costs are likely to be high compared with the benefit claimed (unless the complaint turns on a point of law which is unclear, or disputed statutory interpretation).
• Where a complainant has recourse to an alternative remedy, and they specifically state that they do not seek any financial remedy from their complaint and only wish to achieve non-financial recommendations, we should not specify a financial remedy. However, it is not a requirement for a complainant to tell us they specifically want a financial remedy from their complaint. If we decide, following our consideration of a complaint and any related injustice, that a financial remedy is appropriate then we can make such a recommendation as financial remedies are within the suite of recommendations the Ombudsman can make, as set out in the Guidance on Remedies.  
• When a council undertakes to do something such that an appeal would be unnecessary but then fails to do so, or fails to do so within what we consider to be a reasonable timeframe

Some reasons why we might not exercise discretion under s26(6)

• If there is a specific statutory right to appeal against the council’s actions, the LGSCO will not usually exercise discretion.
• Failure of an authority to comply with contractual obligations will not normally be investigated if the Ombudsman is being asked to interpret the law, e.g. where there is a legal dispute as to the meaning of a document. Enforcing duties under leases, whether commercial or long-term residential (e.g. bought under right to buy) is usually best left to the courts.
• The Ombudsman would generally expect disputes about the level of service charges for residential long-term leases to be dealt with by appeal to the First-Tier Tribunal (Property Chamber).
• Where someone complains of damage to or loss of his or her goods caused by an employee or contractor of the council, it would generally be reasonable to expect them to go to court. It would be appropriate to exercise discretion, however, where the complaint forms part of a wider complaint about the provision of some service by the council, or where the costs of court action would be disproportionately high. In certain circumstances the employees or contractors may be personally liable. In such cases reference should be made both to 26(6) and 24A(6).

S26(6)(c) and Judicial Review

The case of R v Commission for Local Administration ex parte Liverpool City Council (2001) 1 All ER 462 (CA) highlighted the overlap between maladministration and matters which can be raised in judicial review proceedings. Lord Justice Henry said:

“What may not have been recognised back in 1974 was the emergence of judicial review to the point where most if not all matters which could form the basis for complaint of maladministration are matters for which the elastic qualities of judicial review might provide a remedy.”

Lord Justice Henry’s judgment includes the following guidance on when it might be more appropriate for the Ombudsman to consider the matter.

• The allegation can be best investigated by the resources and powers of the Ombudsman.
• The Ombudsman is in a position to get to the bottom of the prima facie case of maladministration and the complainants would be unlikely to reach that goal “having regards to the weaknesses of the coercive fact finding potential of judicial review ... it would be very difficult, if not impossible, for the complainants to obtain the necessary evidence in judicial review proceedings.”
• The complainants are unlikely to have the means to pursue a remedy through the courts.
• The Ombudsman’s investigation and report can provide a just remedy when judicial review might fail to do so.

Although not expressly mentioned in the Liverpool case the Ombudsman considers the following may also be relevant considerations:

• Uncertainty whether there is a remedy by means of judicial review (or other court proceedings).
• The strict time limits for judicial review (ie would it be reasonable in the circumstances of the case to expect the complainant to make or have made the application in time).
• The availability of Legal Aid Agency funding.

In judicial review proceedings evidence is in the form of witness statements. The absence of oral evidence means there is no way of testing what is said by cross‑examination. The process of judicial review, unlike other litigation, does not include the right to see the opponent’s files. So a complainant who judicially reviews the council has to rely on information s/he has gathered prior to the action commencing. The difficulty of obtaining key evidence may therefore be a relevant consideration in deciding whether to exercise discretion.

Examples of how exercise of discretion works in practice

• The Ombudsman exercised discretion to investigate the way the council refused to grant the complainant planning permission for a roof extension. The complainant needed to build the extension without delay, and could not wait for the outcome of an appeal. He was forced to build a smaller extension under his permitted development rights. An appeal could not have achieved any useful outcome for him. Discretion was exercised to investigate.
• The applicant for planning permission was a prospective lessee of premises and when she was refused planning permission, the owner disposed of the premises elsewhere. Discretion was exercised and the complaint investigated. An appeal would not have achieved any useful outcome as the premises had been disposed of.