The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint that the Council wrongly calculated the additional floor space created by development which it says is liable for the community infrastructure levy. This is because the issue carries a right of appeal to the Valuation Office Agency which it would have been reasonable for him to use. We cannot in any event decide whether the Council, or Mr X, is correct in their calculations and we cannot therefore determine the issue at the heart of the complaint.
The complaint
The complainant, Mr X, complains the Council wrongly held him liable for payment of the community infrastructure levy (CIL). He claims the development is exempt from the CIL and says he cannot afford to pay it.
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 further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants, or there is another body better placed to consider this complaint, or there is no worthwhile outcome achievable by our investigation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by Mr X’s representative, Mr Y, and the Ombudsman’s Assessment Code.
My assessment
The Community Infrastructure Levy (CIL) is a surcharge that councils can impose on new development in their areas. Most new development that creates additional floor space of 100 square metres or more is likely to be liable for a charge.
Mr X’s complaint centres on the Council’s calculation of the additional floor space; it considers the development concerned creates more than 100 square metres of floor space and is therefore liable for a CIL payment of more than £28,000. Mr X disagrees; he says the additional floor space is less than 100 square metres and he believes an exemption for ‘minor’ development therefore applies.
There is no right of appeal against a decision not to apply an exemption but there is a right of appeal to the Valuation Office Agency (VOA) against the chargeable amount. Such an appeal would consider the additional floor space created by the development and would therefore determine the floor space calculation issue at the heart of this complaint.
The VOA has the technical ability to reach a view on the issue and it is the appropriate body to determine whether the Council’s calculations are correct.
Mr X appealed to the VOA in September 2024 but it refused to consider his appeal because it was late. Mr X suggests this was because the Council delayed in dealing with his review request dated 22 July 2024 but the Council says he did not make one at that time. Rather Mr X stated he was “aiming to appeal the CIL calculations”. This shows a clear intention to appeal but I am inclined to accept the Council’s position that it did not itself amount to a valid request for a review of the calculation.
Nevertheless, the Council agreed to review the calculation outside the normal time limit and it responded to the request on 23 August 2024.
The time limit for an appeal to the VOA is 60 days beginning on the day the liability notice was issued. This meant Mr X had until 1 September 2024 to lodge an appeal.
The Council’s review response clearly stated “If you are aggrieved with or disagree with my conclusion, Regulation 114 sets out the process which must be followed in order to appeal my decision on this review, including the basis on which the original chargeable amount has been calculated.” However, Mr X instead decided to go back to the Council to query the decision and therefore missed the deadline.
I do not consider Mr X missed his opportunity to appeal against the calculation due to any fault by the Council. I therefore consider it would have been reasonable for Mr X to appeal to the VOA following the review response and by the deadline of 1 September 2024.
The Ombudsman cannot determine which calculations are correct and we cannot therefore achieve any worthwhile outcome for Mr X by investigating the matter further.
Final decision
We will not investigate this complaint. This is because it would have been reasonable for Mr X to appeal to the VOA. We also cannot determine the main issue in this case, which is a technical point concerning the calculation of additional floor space created by the development.
Investigator's decision on behalf of the Ombudsman