The Ombudsman's final decision
Summary: We will not investigate this complaint about the monthly rental charge for a large market unit. There is not enough evidence of fault in the way the Council has decided the rent it will charge for its commercial unit.
The complaint
Mr X complaint the Council charges three times the amount for a large market unit as it does for a small one. He says this is unfair and the Council should lower the charge for a large unit to double that of a small one.
He also complains the Council breached data protection regulations by releasing his name to the market management.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide: there is not enough evidence of fault to justify investigating, or we cannot achieve the outcome someone wants, or there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council has explained the reasons for charging a higher fee for the larger market units including: large units have two entrances to use and trade from so they can spread out small units have one entrance and have much less space the larger space allows traders to have and sell much more stock traders in smaller units cannot retreat into their units in poor weather; and rents have been reviewed and consideration given to smaller units having structural and lighting obstructions.
The Council has explained how it has arrived at the monthly fees for the large and smaller market units. I recognised Mr X believes the rent charged for larger units is unfair. However, councils generally need to get the best available financial return in their property transactions as they have an overall duty to get good value for all their residents. And fees are invariably payable on property transactions.
There is not enough evidence to show fault in the way the Council set its fees for market stalls. Without evidence of fault in the process, the Ombudsman cannot criticise the Council’s decision.
Mr X also complains the Council breached data protection regulations by releasing his name to the market management. We will not start an investigation into this part of his complaint. This is because the Information Commissioner’s Officer (ICO) is the appropriate body to consider his concerns.
The ICO is the UK’s independent authority set up to uphold information rights. It promotes openness by public bodies and protects the privacy of individuals. It deals with complaints about public authorities’ failures to comply with data protection legislation. This includes disclosing information in error.
There is no charge for making a complaint to the ICO, and its complaints procedure is relatively easy to use. Where someone has a complaint about data protection, the Ombudsman usually expects them to bring the matter to the attention of the ICO. This is because the ICO is in a better position than the Ombudsman to consider such complaints. It has far wider powers to act if it finds a council has failed in its duties as a data controller. Mr X should therefore approach the ICO about his data protection concerns.
Final decision
We will not investigate Mr X’s complaint because: there is not enough evidence of fault in the way the Council decided to set the rental charges for its market stalls; and it is reasonable to expect Mr X to ask the ICO to consider his data protection concerns.
Investigator's decision on behalf of the Ombudsman