Summary: Miss X complained about the Council’s administration of a business grant scheme, its decision on her application and its complaint handling, causing her distress and financial loss. We found the Council at fault causing Miss X injustice. We recommended the Council provide Miss X with an apology, payment for distress, feedback on her grant application and evidence it will carry out Equality Impact Assessments in future.

The complaint

1. Miss X complains the Council:
• administered a funding scheme poorly;
• wrongly told her to apply to the scheme;
• failed to offer her support or reasonable adjustments;
• handled her complaint poorly;
• was wrong to help others apply and;
• gave funds to others who did not meet the criteria.
2. Miss X says she has suffered stress, financial difficulties and time and trouble.

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What I have investigated

3. I have investigated the complaints set out above except whether the Council gave funds to others in error. At the end of this decision I have explained why.

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The Ombudsman’s role and powers

4. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
7. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6))

8. 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”.
9. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

How I considered this complaint

10. I spoke to Miss X and I reviewed documents provided by Miss X and the Council.
11. I gave Miss X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

European Regional Development Fund grant

12. The Ministry of Housing Communities and Local Government ((MHCLG) now called the Department of Levelling Up, Housing and Communities) is the Managing Authority for the European Regional Development Fund (ERDF). The EU set up this fund to help local areas stimulate their economic development.
13. The Council has provided a copy of an undated document prepared by MHCLG which explains it can provide additional ERDF funding for specific projects. Key points include:
• The treasury has agreed additional funding to support immediate measures in response to COVID 19 with the current priority to be on business safeguarding and survival.
• The priorities for funding activity should demonstrate the proposed support is in direct response to the impact of COVID 19.
• Grant recipients will need to show how they align with this.
14. The Council has provided an email of July 2020 from MHCLG to the Council. This notifies the Council of the additional funding and the opportunity to request such.

Council’s funding scheme

15. The Council has provided a copy of its request for funding, dated August 2020.
16. It has also provided a contract dated September 2020 whereby MHCLG would agree to provide the funds. This was signed in November 2020. I note the contract included milestones for the Council to meet. Of relevance to this case, the funding activity had to end by 28 February 2021.
17. The Council published details of its grant scheme on its website. This explained it had funding to support small and medium size enterprises to adapt and diversify following the impact of COVID-19.
18. Those eligible could access grants of between £1000 and £3000.
19. Of relevance in this case, a business needed to have been negatively impacted by COVID-19.
20. The Council explained it expected a high demand due to interest to date and the experience of other councils, where capacity had been met within one hour of opening for applications.
21. The application form asked applicants to show their business had been adversely impacted by COVID-19 and evidence at least a 20% decline in turnover, from 17 March 2020 to date, when compared with the same period last year.

Growth hubs

22. Growth Hubs are local public and private sector partnerships that provided help and advice to local businesses. The Growth Hub referred to in this case is managed by a different authority; not the Council.

Council complaints policy

23. The Council publishes its complaints policy on its website.
24. This says it should resolve all complaints within 12 weeks. However, it will agree timescales with customers depending on the complaint. It will also provide an explanation for any delay

Public sector equality duty

25. The Ombudsman cannot find that a council has breached the Equality Act 2010. However, we can find a council at fault for failing to take account of their duties under the Equality Act.
26. The public sector equality duty, under the Equality Act 2010, requires all local authorities to have due regard to the need to:
• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.
• Advance equality of opportunity between people who share a protected characteristic and those who do not.
• Foster good relations between people who share a protected characteristic and those who do not.
27. Case law says it is good practice for a public authority to keep records of its consideration of the aims of the general equality duty when making decisions. If a body is challenged it will be difficult to demonstrate it has had due regard if no records have been kept. Authorities must publish equality information to demonstrate compliance with the general equality duty. In practice, written assessments of impact on equality, or the relevant sections of decision documents are likely to be a key component of this information.

Duty to make reasonable adjustments

28. Under the Equality Act 2010, those providing a public function must ensure a disabled person can use any service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
29. When the duty arises, service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
30. The duty is ‘anticipatory’. This means a council cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.

Principles of Good Administrative Practice

31. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction “Guidance on Good Administrative Practice”. We issued an addendum in response to the COVID-19 pandemic; “Good Administrative Practice during the response to Covid-19”. This shows we expected similar standards from councils, even during crisis working. Our expectations of councils include:
• Being alive to the need for reasonable adjustments to ensure no person is placed at a disadvantage in using a service due to a disability
• Stating the criteria for decision making and giving reasons for decisions
• Having clear and accessible appeal routes

What happened

32. The Council announced its grant scheme on 23 November 2020, opened it on 25 November and closed it on 2 December.
33. Miss X applied for a grant on 2 December.
34. She chased the Council for a response and it confirmed it would update all applicants by 16 December.
35. On 17 December the Council refused Miss X a grant. It said it scored applicants against eligibility criteria and she did not meet the minimum score.
36. Miss X asked the Council for reasons and how to appeal. She said others had chance to amend their applications and provide further information, but the Council did not contact her. She was also delayed due to uncertainty on whether she could apply.
37. The Council told Miss X it was busy prioritising successful applications but it would give feedback on all applications in the new year. Where appropriate it would allow a business to resubmit their application. For those that did not meet the regulations or eligibility requirements it would explain why they could not reapply.
38. Miss X has provided an email to the Council of 22 December. In this she explained she wanted to complain by phone but was told to complain online. Then the online form did not work and so she was sending a copy by email.
39. On 22 December Miss X complained, in summary, that:
• She has a disability and found the process discriminatory given the short time frames.
• She first asked the Council to confirm if she was eligible and it did not get back to her immediately.
• Other applicants were given support with their applications, she received none.
• She was not offered any reasonable adjustments.
• When she asked the Council to review her decision taking into account her disability, it refused.
40. The Council replied the same day that Miss X’s concerns about the complaints process would be sent to the Complaint team. And her complaint about the grant would be sent to the Finance Director, within the business support funding team.
41. The Council acknowledged the complaint on 23 December, explaining it closed over Christmas and would contact Miss X in the New Year. The Council says it then contacted Miss X on 5 January to clarify her complaint by phone.
42. On 13 January 2021 the Council confirmed Miss X’s complaint in writing and said it would respond in 30 working days, by 11 March 2021.
43. The Council provided its stage 1 response on 10 March 2021. I note this response was issued by a director, though not the finance director. The Council said:
• There was an unavoidable delay in it setting up the grant scheme as it first had to take steps to mitigate any risks that may arise.
• It wanted to get money to businesses as soon as possible. Any delay would impact business recovery.
• The Government deadlines gave it a tight timescale.
• On 30 November Miss X asked for advice on eligibility and on 1 December it confirmed she should apply.
• It did not have the resource to provide individual telephone support.
• The online chat and email contact allowed it to respond to a large volume of enquiries. It recognised this online approach did not suit all customers.
• There was need to send blanket emails to customers but due to the context it could have worded these better.
• It would review this and ensure it had a range of ways to talk to customers, and that it considered the tone and content of these messages and the impact this can have on customers.
• It had not given feedback on her application to allow for an impartial complaint investigation first, it would now give feedback.
• It gave some applicants feedback to ensure their projects could be delivered within the timeframes. This did not change the submission, only the project delivery timeframe. She had not provided specific examples of funds given in error for it to investigate.
• It was sorry it gave her the outcome a day late on 17 December; it had fed back to the team to prevent recurrence.
• It could have had more consideration about how the process would impact on people. It would ensure it completed an Equality Impact Assessment for any new projects and funding streams.
• Within six weeks it would:
1. Provide feedback on her application.
2. Ensure its equality policy was added to the secondary website.
3. Ensure relevant team members complete the Equality Act 2010 and its legal obligations 2020 training
4. Ensure the relevant team reviewed its online only contact approach particularly with regards to customers with specific needs and with challenging circumstances.
5. Consider how customers with specific needs can be further supported and how this should be managed when delivering South Yorkshire wide schemes.
6. Ensure that published timetables are adhered to and if there is a delay that this will be communicated.
7. Complete An Equality Impact Assessment for any new funding streams.
44. Miss X responded on 11 March that:
• She had difficulty accessing the stage 1 response due to the secure system the Council uses and the lack of instructions.
• She spent a lot of time engaged in the complaints process.
• Despite the Council’s discriminatory process it now said she was not entitled to anything.
• The short timeframes were discriminatory given her health and the impact on her.
• It was not up to her to identify those the Council had funded in error and she would request an audit if needed.
• There was no clarity around the eligibility criteria and a lack of joined up approach meant she only found out on 31 November that she should apply.
• The Council should not have run the process if it did not have adequate resources.
• She asked for reasonable adjustments and the Council was legally obliged to offer her additional help.
45. The Council sent further correspondence on 15 March to follow up its response. The Council apologised Miss X found its secure system complicated. The Council also apologised for the distress she had experienced throughout. It further explained the funding application process required business owners to provide documented evidence that the business had incurred a significant loss or was experiencing a low level of trading largely due to the impacts of COVID-19 on the business. It was sad that, because of Miss X’s illness and subsequent disability, she could not demonstrate this. The Council reiterated steps it would take to improve its process in future and offered Miss X a meeting to discuss what other business support may be available to her.
46. Miss X contacted the Council again on 16 March. She:
• Asked for a telephone meeting to discuss her complaint as she was still unhappy given her concerns and the impact on her.
• Explained she asked if she could apply despite having no turnover figures and was told her application would be accepted, yet it was then refused on this ground.
• Said the Council refused her request for more time to apply as a reasonable adjustment.
• Said she had missed out on funding due to the Council’s flawed and discriminatory process.
47. Miss X says the Council then called her, refusing a meeting and referring her to the Ombudsman. However, the Council says Miss X said she did not want to go to stage 2 and would contact the Ombudsman.
48. Miss X then complained to the Ombudsman.
49. The Ombudsman contacted the Council to see if it had completed it complaints process. The Council said it would like the opportunity to consider the complaint at stage 2.
50. Miss X asked to speak to the Council again, however it refused as it said it had all the information it needed.
51. The Council issued a stage 2 response on 20 May 2021. It apologised, confirmed it was satisfied with the actions taken at stage 1 and said Miss X could go to the Ombudsman if she remained unhappy.
52. Miss X complained to the Ombudsman again. She was also unhappy the Council had refused to speak to her which would have allowed her to explain the impact of its actions.
53. As part of my enquiries I asked the Council to provide any evidence it considered the impact of its timeframes on those with disabilities; that is the few days giving notice of the scheme and the short period to apply.
54. The Council said it published the application guidance and forms on 25 November 2020 with applications due on 2 December. It wasn’t a few days. And a process had to be reverse engineered to fit within MHCLG’s deadline.
55. I asked the Council to provide any evidence it made anticipatory adjustments to ensure those with disabilities could access the scheme as easily as anyone else.
56. The Council explained that due to the COVID-19 pandemic, all staff had to work from home therefore all interactions were undertaken online or by phone. It made adjustments by:
• Introducing a system for applicants to webchat with staff for help/guidance and to identify those with additional needs.
• Making relevant staff available by phone.
• Another council also providing a support service via phone and email via their gateway team.
• Establishing a dedicated email address specifically for queries related to the project.
57. I asked the Council to comment on Miss X’s allegation that it refused her more time to apply for the grant, which she needed as a reasonable adjustment due to disability.
58. The Council explained it gave applicants as much time as possible while allowing it to meet MHCLG’s milestones. Failure to meet the milestones would have resulted in it not being able to recoup the £1.1m funds.
59. Miss X met the deadline before the window was closed. Additional time would not have made a difference to the success of the application. This is because the main reason for rejection was the lack of evidence regarding her turnover and therefore evidence the business had been adversely impacted by COVID 19.
60. I asked the Council to comment on Miss X’s allegation that a Growth Hub told her to apply to the scheme even though she said she could not provide turnover figures.
61. The Council explained it did not manage the Growth Hub or its staff. It did however ask the Hub for records of its contact with Miss X. It had no call records and the emails exchanged did not refer to turnover.
62. The Council has provided its assessment of Miss X’s application. This reports her business could not show at least 20% decline in turnover from 17th March 2020 to date of application compared to same period last year – which is part of the eligibility criteria. Miss X had asked the Council to take into account the turnover prior to the two year period of illness /dormant business activity by way of a reasonable adjustment. It then considered information on turnover from 2015 but found the business could not demonstrate the low trading level was largely due to the COVID crisis.
63. Upon request, the Council was unable to provide a copy of any feedback it gave Miss X on her application, further to its letter of 10 March 2021. I then spoke to Miss X who confirmed she did not receive any feedback.
64. In comments on a draft of this decision Miss X said:
• The Council did not offer web support or web chat that she could see. When she called the Council there was an automated message that said you could only email.
• She had an existing relationship with the Growth Hub so that is who she contacted for advice.
• The Growth Hub told her to apply despite knowing she could not provide turnover figures. She believes the Growth Hub gave her this information based on what the Council had told it.
• There were typos on the application forms and the Council did not ask if she had any conflict of interest as it should have done.
• If the Council gave grants to others in error this is unfair.
• The Council did not carry out an audit as she requested.
• The Council did not meet its obligations under the Equality Act 2010.
• She has been put to significant time and energy in the complaints process and the Council has benefitted from her feedback. The recommended remedy does not take into account the impact to her business and the lack of funding.
• The Council initially offered her support from a consultant which she refused but it has made no other offer. It should provide the funding.

Findings

65. On review of the documents provided and the timeframes evidenced, I find no undue delay by the Council in establishing its grant scheme from July 2020 to November 2020.
66. The Council announced its scheme on 23 November 2020, published details on 25 November and closed the scheme on 2 December. This allowed 10 calendar days for a business to apply to the scheme. The Council has been unable to provide any evidence it had due regard to its equality duty in setting this timeframe. This is fault. However, I cannot say whether the Council would have allowed a longer timeframe but for this fault. It is likely, given its reasons in response to my enquiries, it would not have done so. I therefore cannot say this fault directly caused Miss X to suffer injustice. However, the Council should act to prevent recurrence and to avoid causing injustice in future. I am satisfied with the Council’s proposed actions of completing Equality Impact Assessments in future.
67. Miss X says the Council refused her requested reasonable adjustment of more time to apply. The Council does not deny refusing this request but maintains its refusal did not cause Miss X injustice. I therefore accept on balance the Council did refuse the request. While the Council is entitled to refuse a requested adjustment, there is no evidence it properly considered its duty to make reasonable adjustments before doing so. This is fault. I cannot say the Council would have allowed more time had it given proper consideration. However, Miss X has suffered distress due to the lack of regard shown to her. I consider the Council should provide Miss X with an apology, payment and act to prevent recurrence.
68. The Council has explained businesses could access its scheme online or by phone and people could ask for support if needed. Miss X complains the Council did not offer her support to apply. However, the documents suggest Miss X was able to apply online and I have not seen she requested phone support at the time, which was then refused. I therefore find no fault by the Council.
69. Miss X says a Growth Hub told her to apply to the Council’s scheme even though she did not have turnover figures. I cannot investigate the actions of the Growth Hub under this complaint, as it is operated by another authority. Miss X could raise a complaint direct to the Growth Hub if she wishes. Insofar as the Council may have told the Growth Hub that Miss X should apply, I will not investigate this further because it is unlikely I will find fault. This is because we would expect the Council to consider each application on a case by case basis and not rely on a blanket policy of excluding those without turnover figures. Therefore, it would be right for the Council to consider any application from Miss X.
70. The Government made clear the funding was to assist businesses financially impacted by the COVID-19 pandemic. The Council took this into account by requiring businesses to demonstrate a downturn in turnover caused by the pandemic. The Council was entitled to seek this evidence as part of its scheme, which was in line with the Government’s intentions. I find no fault in it doing so.
71. The Council refused Miss X a grant as she could not evidence a downturn in turnover in line with its policy. However, Miss X considers the Council failed to consider her particular circumstances in doing so. If the Council had applied its policy too rigidly I may have found fault. However, its records show it considered Miss X’s business had historically low trading and so it could not say this was due to the pandemic. The Council correctly applied its policy and it did not unduly fetter its discretion, rather it considered the further evidence of turnover available in Miss X’s case. Therefore, I find no fault in its decision making.
72. Miss X complains the Council offered other applicants more support with their applications than her. However, I have not seen any evidence of fault that caused Miss X injustice. I would expect the Council to ask for more information where necessary to decide on eligibility. The Council’s records show it had enough information to decide Miss X was not eligible for the grant. There is nothing to suggest the Council made favourable decisions for other applicants with the same circumstances as Miss X.
73. The Council should have given feedback to Miss X on her application and allowed her the opportunity to challenge its decision by way of an appeal or review. However, the Council had still not provided reasons or feedback on its decision or offered a right of appeal at the time Miss X contacted the Ombudsman. This is fault. While the evidence suggests the outcome would be no different, this has caused Miss X avoidable uncertainty. I consider the Council should provide Miss X with an apology and payment for this.
74. I find no undue delay in the Council’s handling of Miss X’s complaint.
75. In its stage 1 response the Council told Miss X how she could escalate her complaint. That the file name was titled as a “final response” does not amount to fault.
76. The Council did not have to agree to Miss X’s requests for a phone call to discuss her complaint, though it is good practice to give a reason for any refusal.
77. I acknowledge Miss X expected a different department to deal with her complaint to ensure independence. However, the Council’s complaints policy does not require this. And although the Council initially suggested one director would respond, that another director then did so does not amount to fault.
78. I recognise it can be stressful and inconvenient to make a complaint. Further that Miss X suffered more than others due to health issues. However, I cannot consider a remedy for the time and trouble she spent complaining unless I have first found fault in the Council’s handling of the complaint. The Council did not delay addressing the complaint and it provided a detailed response at stage 1. While the stage 2 response simply upheld its previous response, that is not fault.
79. I recognise Miss X feels aggrieved and would like any recommendations to include funding for her business. However, I can only seek to remedy injustice arising as a direct result of the Council’s fault. I have explained above the fault identified and the injustice arising as a direct result. And I have made recommendations in line with the Ombudsman’s published guidance on remedies.

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Agreed action

80. To remedy the injustice set out above I recommend the Council carry out the following actions:
81. Within one month:
• Provide Miss X with a further written apology;
• Pay Miss X £300 in recognition of the avoidable distress and uncertainty she has suffered;
• Provide Miss X with written feedback on her grant application and offer a right of review.
• Provide evidence the Council has told relevant staff to carry out Equality Impact Assessments in advance of deciding any new funding process.
82. The Council has accepted my recommendations.

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Final decision

83. I have found fault in the Council’s administration and decision making on its grant scheme causing Miss X injustice. The Council has accepted my recommendations and I have completed my investigation.

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Parts of the complaint that I did not investigate

84. I did not investigate the Council’s decisions on third party grant applications. This is because the Council has not yet had chance to investigate and reply and because it is unlikely any fault caused Miss X significant injustice.
85. In response to Miss X’s comments, I will not investigate the content or presentation of the Council’s grant application form as any injustice is not significant enough to justify our involvement. I will also not investigate Miss X’s complaint that the Council did not carry out an audit, as it is unlikely I would find fault, given the Council was under no obligation to do so.

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Investigator's decision on behalf of the Ombudsman