Summary: We will not investigate Ms X’s complaint, brought by on her behalf by Mr Y, about the Council delaying its response to her compensation claim until an appeal was timed out under a six-year statutory time limit. Ms X, represented by Mr Y’s firm, had an alternative remedy through an Upper Tier Tribunal appeal which it was reasonable for her to use to pursue the outcome she seeks. The complaint is also late and there are no good reasons for us to investigate it now.

The complaint

1. Ms X made a compensation claim against the Council regarding impacts to her property from a highway scheme completed in 2014. Mr Y is Ms X’s professional advocate. He works for the law firm which has represented her since she made the compensation claim in February 2018.
2. Mr Y complains the Council delayed its response to Ms X’s claim to the point where any appeal has been timed out under a six-year statutory time limit.
3. Mr Y says Ms X has incurred a loss of value to her property due to the highway. He wants the Council to review her compensation claim and engage with him to agree a fair payment for Ms X.

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The Ombudsman’s role and powers

4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

6. I considered information from Mr Y and from the Council, the Land Compensation Act 1973, and the Ombudsman’s Assessment Code.

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My assessment

7. Ms X’s claim, made under the Land Compensation Act 1973 (‘the Act’), is that the Council’s highway scheme completed in 2014 negatively affects the value of her property. Where a dispute arises from a claim made under the Act, it provides an appeal right to claimants at the Upper Tier Tribunal (‘the Tribunal’). This provides an alternative route for a remedy for claimants using the Act.
8. As explained above, we cannot normally investigate a complaint when someone could have taken a matter to a tribunal. We may decide to investigate if we consider it would be unreasonable to expect the person to appeal. I have considered whether we have grounds to exercise that discretion to investigate Ms X’s complaint here.
9. Mr Y says the Council delayed consideration and resolution of Ms X’s claim until a six-year statutory time limit for her to pursue her claim had expired. He refers to delays in the Council responding to correspondence from his firm during 2023. That happened after that time limit had passed. Mr Z of the firm representing Ms X stated to the Council in his letter of 5 May 2023 that she could first make her claim from May 2015 onwards. She lodged her claim in February 2018, about 20 months later. Mr Z wrote to the Council on 5 May 2023 about Ms X’s claim. Mr Z says the Council ‘strung out’ the case, requiring his firm to repeatedly chase the Council’s insurers. Mr Z says the Council delayed for 17 months between December 2018 and May 2020. The Council made a settlement offer in May 2020 which Ms X did not accept.
10. Even if the Council acted as described by Mr Z, Ms X was professionally represented throughout the claim process by a firm which should have been aware of any relevant cut-off date for her to lodge an in-time Tribunal appeal. It was for that firm to advise Ms X in her best interests on all matters which could affect her claim. If Ms X chose not to instruct the firm to appeal, despite advice given by the firm for her to do so, that is not fault by the Council.
11. There is not enough evidence of the Council’s actions or inactions preventing Ms X’s representatives from using her alternative remedy by lodging a Tribunal appeal to warrant us exercising our discretion to investigate. It was reasonable for Ms X and her legal representatives to use that appeal right to pursue the outcome she seeks, so we will not investigate.
12. I note Mr Y says the cost of an appeal would not have been proportionate to recover the sum being claimed. But the tribunal is the appropriate route provided specifically by law to resolve disputes. We do not exercise discretion to investigate on the basis that an appeal will incur costs.
13. I understand Mr Y considers any appeal from Ms X in pursuit of her claim will be out of time because of the passing of a statutory time limit of six years. It may be relevant to any assessment of whether a Tribunal appeal is now statutorily time‑barred that the Council made Ms X a settlement offer in May 2020, less than six years ago. Whether the terms of any statute of limitations applies to her appeal would be a matter only the Tribunal could determine. Should Ms X seek to appeal regarding her February 2018 claim, the Act allows for applications for payment of interest on any compensation going back to the date of the claim.
14. Ms X’s complaint to us is also late. We expect people to come to us within 12 months of them becoming aware of the matter complained of. She and her representatives have known about the core issue of the Council not settling her compensation claim for over 12 months. The more recent reinforcement of the Council’s position on her claim in 2023 does not bring the matter within 12 months as that position had already been made clear by it not settling the claim many months sooner. There appears to be no reason why Ms X or her representatives could not complain to us much sooner. There are no good reasons for us to investigate the complaint now. In view of the alternative remedy that was or is available to Ms X at the Tribunal, we do not need to further consider the exercise of our discretion on this point.

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Final decision

15. We will not investigate Ms X’s complaint because:

• she had an alternative remedy by way of an appeal to the Upper Tier Tribunal which it was reasonable for her to use; and
• the complaint is late and there are no good reasons for us to investigate it now.

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Investigator's decision on behalf of the Ombudsman