The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s handling of the complainant’s planning application and subsequent complaint. It is reasonable to expect her to have used her right of appeal to the Planning Inspector and, in any case, there is insufficient evidence of procedural fault in the way the application was determined. We will not look at the complaints process in isolation.
The complaint
Mrs X complains about the handling of her first planning application and subsequent complaint, with particular reference to conduct, confidentiality, intimidation, and procedural unfairness.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We can 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. So, we do not start an investigation if we decide: there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement, or we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants, or there is no worthwhile outcome achievable by our investigation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) The law also says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. The Planning Inspector acts on behalf of the responsible Government minister, and can consider appeals about a decision to refuse planning permission. (Local Government Act 1974, section 26(6)(b), as amended) And it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.
How I considered this complaint
I considered: information provided by Mrs X, which included the Council’s complaint responses.
information on the Council’s website about Mrs X’s planning applications.
information on the Council’s website about its ‘In-app advice request’ process.
the Ombudsman’s Assessment Code.
My assessment
I appreciate Mrs X says she is complaining about the handling of her first application, rather than the decision itself. But these matters are intrinsically related to the planning decision, and it seems reasonable to expect Mrs X to have appealed to the Planning Inspector if she was unhappy about the refusal of her application. With reference to paragraph 4 above, the Ombudsman will not usually investigate when someone had a right to appeal to the Planning Inspector, even if the appeal would not have addressed all the issues being complained about.
And even if this restriction did not apply, it is important to highlight the Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
I consider there is insufficient evidence of procedural fault in the way the application was determined, so we would not investigate the complaint for this reason too. In reaching this view, I am mindful that: each application is considered on its own merits, taking into account the particular characteristics of the site and surrounding area. The Council has explained why Mrs X’s proposal is not comparable to others she has identified.
Mrs X chose to engage with the Council’s ‘in app advice request’ service, and the Council appears to have followed this process during the determination of the application.
the officer report assesses the relevant material planning considerations; the Council was entitled to reach its own professional judgement on whether the proposal was acceptable in planning terms, even if Mrs X disagrees with the decision reached.
I have seen no evidence or examples of poor conduct, lack of confidentiality, intimidation or procedural unfairness affecting the planning decision.
And with reference to paragraph 5 above, as we are not investigating the substantive issues being complained about, it would not be a good use of our resources to look at the Council’s handling of the subsequent complaint process in isolation.
Final decision
We will not investigate Mrs X’s complaint because: it is reasonable to expect her to have used her right of appeal to the Planning Inspector.
there is insufficient evidence of fault in the way the application was determined, we will not pursue the complaints process in isolation.
Investigator's decision on behalf of the Ombudsman