Summary: The Ombudsman will not investigate Mrs X’s complaint about how the Council dealt with support for her business during COVID-19. This is because there is not enough evidence of fault causing injustice to warrant an investigation.

The complaint

1. The complainant, whom I shall call Mrs X, complains poor communication by the Council meant she could not apply for support available to businesses during COVID-19.

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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 fault has not caused injustice to the person who complained, 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, or
• we cannot achieve the outcome someone wants. (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 Mrs X’s complaint to the Ombudsman and the information she provided. I also gave Mrs X the opportunity to comment on a draft statement before reaching a final decision on her complaint.

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What I found

Background

6. In March 2020, the Government created schemes for councils to pay grants to small businesses. This was because the COVID-19 restrictions affected so many of them.
7. Businesses in receipt of Small Business Rates Relief (SBRR) or Rural Rates Relief (RRR) as of 11 March 2020 were eligible for a payment of £10,000.
8. The Government, via the Department for Business, Energy, and Industrial Strategy, produced guidance to help councils run the scheme. The guidance stated later changes to the rating list, even if they are backdated to 11 March 2020, do not entitle a business to a grant. A council can make an exception if, on 11 March 2020, it already had good reason to believe the rating list was inaccurate for a particular address or business.
9. A set of Frequently Asked Questions (FAQs) accompanied the guidance. FAQ 62 dealt with “shared space/serviced offices, where tenants are not the rate payers”. This said that:

“Only businesses with their own assessment for business rates and eligible for Small Business Rates Relief, Rural Rates Relief or Expanded Retail Discount with a rateable value below £51,000 will be eligible for the grant. Businesses which are not ratepayers are not eligible.”

10. On 4 May 2020, the Government announced discretionary grants would be available to businesses affected by COVID-19. Councils were asked to produce their own discretionary schemes. Councils could give a discretionary grant of £25,000, £10,000 or any sum under £10,000 to businesses which were not able to access other grant funding. The Government asked councils to prioritise various types of business, including “small businesses in shared offices or other flexible workspaces”. Councils had to set out on their websites the criteria for each level of grant, and what sort of businesses were being prioritised. They also had to run an application process to deliver the grants.

What happened

11. Mrs X represents a business which operates from shared premises. The monthly rent includes business rates. Mrs X contacted the Council on 07 April 2020 about applying for the Small Business Grant. Mrs X chased the Council for a response on 28 April. Mrs X says she learnt of the discretionary grant scheme on 04 June but had still not received a response about the Small Business Grant. The Council’s discretionary scheme accepted applications between 27 May and 10 June. Mrs X emailed the Council again on 19 June and copied her email to an alternative address. Mrs X received an email saying she would be contacted within 14 days. When this did not happen, she emailed the Council again on 03 July. Mrs X received an email from the Council on 16 July. This said that as Mrs X was based in a “serviced office” she did not meet the criteria for a Small Business Grant. The Council said the application window for discretionary grants had closed.
12. Mrs X complained to the Council and in response it said:
• Information on the Council’s website explained eligible businesses would be contacted from 30 March about applying for a Small Business Grant. Mrs X’s business was not eligible, so it had not been contacted. The Council could not comment on other councils which may have taken a different approach.
• The Council had set up a dedicated email address for businesses to submit applications for grants. But there was nothing to stop businesses using the email address to submit general enquiries.
• It had updated the ‘Business Rates Team’ mailbox, which Mrs X had emailed, with an automated response on 07 April (although after Mrs X sent her original email). This directed businesses to the new, dedicated email address (see above).
• Mrs X should still have received responses to the emails she sent on 07 and 28 April.
• But when Mrs X emailed on 28 April, and any date after this, she would have received the automated response directing her to the new dedicated email address. There was nothing to stop Mrs X using this to send any general enquiries.
• The Council felt the two-week window to apply for discretionary grants was adequate. Mrs X had time to apply for a discretionary grant.
• Whilst the Council’s communications were “imperfect” and Mrs X deserved an apology “impediment caused by this failure was [not] significant enough to result in a financial loss or disadvantage to the company.”

Assessment

13. We do not investigate all the complaints we receive. In deciding whether to investigate we need to look at various tests. These include the likelihood of finding fault and the injustice caused to the person complaining. We also need to consider what we could achieve.
14. In response to Mrs X’s complaints, the Council has accepted it was wrong not to respond to her emails about the Small Business Grant. It has apologised for this and explained the second email Mrs X sent will have received an automated response, pointing her to an alternative email address.
15. I understand Mrs X’s frustrations the Council did not respond to her original emails. But the Small Business Grant Scheme contains clear criteria. To qualify for the grant, a business needed to be in receipt of SBRR or RRR on 11 March 2020. This did not apply to Mrs X’s business. The guidance also explains later changes to the rating list do not mean a business qualifies for the grant, unless the Council had reason to believe on 11 March the rating list was wrong. This also does not apply to Mrs X’s business.
16. While I understand Mrs X is disappointed with the Council’s decision not to award the grant, there is not enough evidence of fault in how the decision was reached for us to question it. The Council’s failure to respond to Mrs X’s emails does not change the fact her business did not qualify for the grant. The Council has explained its decision to Mrs X.
17. Based on the information I have seen, it seems Mrs X did not apply for the discretionary grant because she had not received a response to her original email. But the automated response sent on 28 April did provide Mrs X with an alternative email address. Mrs X also accepts she was aware of the discretionary scheme during the application window. It was therefore open to Mrs X to apply and there was time for her to do this. If we were to investigate, we could not say fault by the Council led to Mrs X’s decision not to apply.
18. Mrs X is also unhappy with the two-week application window. But it was for the Council to decide how the scheme operated. The aim of the scheme was to ensure businesses received funding as quickly as possible. We could not therefore say the two-week window represented fault by the Council. We will not therefore investigate Mrs X’s complaint.

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Final decision

19. We will not investigate Mrs X’s complaint. This is because there is not enough evidence of fault causing injustice to warrant an investigation.

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Investigator's decision on behalf of the Ombudsman