Summary: We will not investigate this complaint about a garage rented from the Council. Mr X could reasonably use his right to go to court. The substantive complaint is also late without good reason to investigate it now.

The complaint

1. Mr X complains the Council took too long to repair the garage he rented from it and treated him poorly during that time. He says this resulted in damage and loss to property he used for his business and he suffered distress.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
4. 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

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr X argues the Council’s handling of the repairs breached his legal agreement with the Council about garage rental. He also argues the damage resulted from wilful neglect by the Council. If a claim against the Council’s insurance does not resolve the damage point, the courts can consider both those matters, so the restriction in paragraph 3 applies.
8. There might be some cost to court action but that in itself does not automatically mean the Ombudsman should investigate instead. There is a reasonable expectation a business will follow the appropriate route for remedy that the law provides. Questions about whether negligence happened, and liability and compensation for any negligence, are not necessarily straightforward legally. It is more appropriate for the courts than the Ombudsman to consider them. It is also more appropriate for the courts than the Ombudsman to interpret contractual duties and decide whether legal agreements have been breached. Therefore I consider it would be reasonable for Mr X to go to court for a decision about whether the Council was at fault for the repairs timescale, his damaged property and any associated losses, which are the central points of his complaint.
9. Even if paragraphs 7 and 8 above did not apply, the central points of the complaint are also late. Mr X says the Council took from July 2019 to May 2021 to resolve the disrepair properly and the damage to his property happened during that time. Mr X was aware of the matters throughout that time. He knew he was unhappy at least from 2020. He told the Council he was considering making a formal complaint in September 2020, so he knew about that right. He did not complain to the Ombudsman until February 2023, so the restriction in paragraph 4 applies.
10. Even if there was some delay by the Council in the complaint procedure, and even though Mr X did not realise for some months that the Council had sent a final complaint response in 2022, many of the events in 2019-2021 were more than 12 months old even then. Overall, I consider Mr X could reasonably have complained to us much sooner. I am not persuaded there is good reason now to investigate the late complaint about the disrepair and the damage.
11. It would therefore be disproportionate for us to investigate peripheral matters such as the Council’s complaint-handling or it serving and withdrawing notice to quit the garage, some of which happened in the last 12 months and some of which happened longer ago.

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Final decision

12. We will not investigate Mr X’s complaint because he could reasonably use his right to go to court and because the substantive complaint is late without good reason to investigate it now.

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Investigator's decision on behalf of the Ombudsman