Summary: We will not investigate Mr X’s complaint about the Council’s delay in determining his client’s planning application. This is the issue carried a right of appeal which it would have been reasonable for Mr X/his client to use. Mr X has now appealed against the Council’s decision to refuse his client’s application and we cannot therefore investigate any concerns about the Council’s handling of the application or his complaint. This is because doing so would overlap with the appealable issues and the issue does not in any event cause Mr X significant injustice.

The complaint

1. The complainant, Mr X, complains about the Council’s handling of his client’s planning application. He says the Council delayed in determining the application and failed to follow its own policies. He also complains about the Council’s handling of his complaint.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. We may decide to investigate if we consider it would be unreasonable to expect the person to appeal but cannot investigate if the person has already appealed. (Local Government Act 1974, section 26(6)(b), as amended)
5. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:

• Delay – usually over eight weeks – by an authority in deciding an application for planning permission
• A decision to refuse planning permission.

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How I considered this complaint

6. I considered information provided by Mr X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. We do not look at complaints about a council’s complaints handling in isolation. Rather, we look at the issue which led to the initial complaint and, if we decide to investigate that issue we may also decide to look at the Council’s handling of the complaint about it. This is because a council’s complaints handling rarely causes such significant injustice that it would warrant investigation as a standalone issue; there may also be jurisdictional issues where the person has used a right of appeal or where a right of appeal existed which we consider it would have been reasonable for the person to use.
9. Mr X initially complained to the Council when it missed the deadline for determining his client's application but he says the Council failed to deal with his complaint properly.
10. As Mr X is aware, where a council fails to determine a planning application within the time limit set out in law the applicant, or someone acting on their behalf, may appeal to the Planning Inspectorate. There is a specific right of appeal for delay (known as non-determination) and I have seen nothing to suggest it would not have been reasonable for Mr X or his client to use it.
11. But Mr X did not use this right of appeal; instead, acting on his own behalf, he complained to the Council. And when the Council later refused the application, Mr X appealed to the Planning Inspector on his client’s behalf.
12. Because Mr X has appealed to the Planning Inspector we have no jurisdiction to investigate any complaint about the Council’s actions in connection with, or having a bearing on, its consideration of the planning application. This interpretation of Section 26(6)(b) of the Local Government Act 1974 has been endorsed by the courts.
13. I appreciate Mr X is unhappy with the Council’s handling of his complaint but I have seen no good reasons to deviate from the approach set out at Paragraph 8 to investigate this point further. This is because I do not consider the Council’s complaints handling, whether fault or not, caused Mr X significant injustice. The courts have also made clear that where we cannot investigate a complaint about the main or underlying issue, as in this case, we cannot normally investigate related issues either. I do not therefore see that we could investigate Mr X’s concerns about the way the Council handled his complaint, or that doing so would be a good use of resources or lead to any worthwhile outcome for Mr X.
14. The main injustice that exists in this matter stems from the Council’s failure to determine the application within the relevant timescales and its decision to refuse the application and we cannot investigate these issues further for the reasons set out above. The injustice is also primarily to the applicant rather than Mr X, and Mr X has confirmed both to the Council and to us that he is not complaining on their behalf.

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Final decision

15. We will not investigate this complaint. This is because Mr X’s concerns overlap with issues which carried a right of appeal to the Planning Inspectorate. We will not separately investigate his concerns about the Council’s handling of his complaint because the complaint relates to appealable issues and did not cause Mr X significant injustice.

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Investigator's decision on behalf of the Ombudsman