Summary: We will not investigate Mr X’s complaint about how the Council has treated his businesses during COVID-19. This is because there is not enough evidence of fault by the Council.

The complaint

1. The complainant, whom I shall call Mr X, complains about how the Council has treated his businesses during COVID-19. Mr X is unhappy about letters the Council sent saying his businesses were not complying with government guidance. Mr X is also unhappy about a Prohibition Notice the Council sent requiring his business to close at 22.00 hours.

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The Ombudsman’s role and powers

2. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended)

4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

5. I considered Mr X’s complaint to the Ombudsman and the information he provided. I also gave Mr X the opportunity to comment on a draft statement before reaching a final decision on his complaint.

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What I found

Background

6. In August 2020, the Government updated its guidance document ‘Keeping workers safe during COVID-19 in restaurants, pubs, bars and takeaway services’ (‘Keeping Workers Safe’). The document provided guidance on how to open workplaces safely while minimising the risk of spreading COVID-19.
7. The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020, came into force on 14 October 2020 (‘the regulations’). These prevented pubs, restaurants, and bars from opening between 22.00 and 05.00 hours. The regulations gave councils the power to issue a Prohibition Notice if they believed a person operating such a business was in breach of the regulations.

What happened

8. Mr X runs various pubs in the Council’s area. In August 2020, the Council wrote to him about two of his pubs. It was concerned that in one of Mr X’s pubs, customers were standing at the bar and around tables where there were not enough seats. At another pub, the Council considered the music was too loud and required people to raise their voices.
9. Mr X complained to the Council and said he “disagreed with the comments and allegations made”. Mr X asked for “the exact rules” the Council felt he was breaking. In its response to Mr X, the Council referred to Keeping Workers Safe. Section 2.1 dealt with ensuring that all indoor customers are seated. Section 4.5 said venues should take steps to mitigate the increased risk of virus transmission from raised voices. This included lowering the volume of music.
10. In October 2020, the Council issued Mr X with a Prohibition Notice for one of his pubs. The letter sent with the notice explained officers had witnessed:

“customers who were consuming drinks standing in the bar area beyond 10pm. Management at the premises were making no efforts to remove the customers. As you are aware, restaurants, bars or public houses must not operate between 10pm and 5am. All patrons must be cleared from the premises prior to this time, and the premises closed.”

11. Mr X complained to the Council. He said that at 21.57 hours a customer wanted to use the toilet. It was agreed their friend could wait inside. Mr X disputed the Council’s claim the customers were drinking.
12. The Council responded to Mr X’s complaint. It said officers witnessed two customers standing inside at 22.10 hours. This was a breach of the regulations which required pubs and restaurants to close at 22.00 hours – this meant customers had to have left the premises. One of the officers had spoken to the bar manager at the time who confirmed one customer was wating for another. The Prohibition Notice formalised the requirement to close at 22.00 hours and could lead to prosecution if breached. The Council felt the Prohibition Notice was a “justified and proportionate action.” If Mr X remained unhappy, he could complain to the Ombudsman.

Assessment

13. The Ombudsman is not a route of appeal for people who disagree with a council’s decision. We do not investigate all the complaints we receive. In deciding whether to investigate we need to consider various tests. These include the likelihood of finding fault and the alleged injustice to the person complaining. We cannot criticise a council’s decision without evidence of fault in how the decision was reached.
14. The letters the Council sent to Mr X in August 2020 were because of officer visits to Mr X’s businesses. Based on what officers saw, they were concerned Mr X’s businesses were not following the advice in Keeping Workers Safe. This is a decision the Council’s officers were entitled to reach. The Council wrote to Mr X and explained its concerns with reference to Keeping Workers Safe. The Council offered to work with Mr X to ensure his businesses operated in line with the guidance. I was not there at the time, but the information I have seen does not show any evidence of fault in the Council’s actions.
15. Mr X is unhappy with the Prohibition Notice the Council sent in October. But Mr X accepts there were customers inside his premises after 22.00 hours. While Mr X clearly thinks the reasons for this were justified, the regulations are clear. Pubs, restaurants, and bars are required to close at 22.00 hours, and this includes all customers having left the premises. This had not happened and so I do not see any evidence of fault in the Council’s decision to issue the Prohibition Notice.
16. I understand Mr X is frustrated by the restrictions placed on his businesses because of COVID-19. But the information I have seen shows the Council has simply been implementing the guidance and regulations introduced because of COVID-19. This is not fault and so we will not investigate Mr X’s complaint.

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Final decision

17. We will not investigate Mr X’s complaint. This is because there is not enough evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman