Summary: Mr X complains the Council was wrong to refuse retail rates relief to his business, negatively affecting its finances. We find no fault in the Council’s decision making but we find fault as it delayed communicating its decision, causing uncertainty. However, we consider it is not appropriate to make recommendations in the circumstances of this case.

The complaint

1. Mr X complains the Council was wrong to refuse retail rates relief to his business, negatively affecting the business’ finances.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)

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How I considered this complaint

5. I spoke to Mr X and I reviewed documents provided by Mr X and the Council.
6. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered their comments before making a final decision.

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What I found

Expanded Retail Discount (the “Discount”)

7. In 2020 the Government increased the availability of the business rates retail discount in response to the COVID-19 pandemic. In April 2020 it published guidance for councils on how to apply this discount; “Business Rates, Expanded Retail Discount 2020/21: Coronavirus Response Local Authority Guidance”.
8. Each council was to adopt its own scheme and decide whether to grant the Discount, having regard to the guidance.
9. The Discount applied to businesses used wholly or mainly:
• as shops, restaurants, cafes, drinking establishments, cinemas and live music venues;
• for assembly and leisure; or
• as hotels, guest and boarding premises and self-catering accommodation
10. Shops, restaurants and cafes were further defined as properties used for the sale of goods, supply of services, or sale of food or drink, to visiting members of the public.
11. Assembly and leisure meant:
• properties used for the provision of sport, leisure and facilities to visiting members of the public (including for the viewing of such activities) or,
• properties used for the assembly of visiting members of the public.
12. The guidance listed the types of business included. However, this was a guide only and it was for councils to decide if a business was broadly similar in nature to those listed and so eligible.
13. The guidance also listed the types of business the Government considered ineligible for the Discount. This included properties used for:
• Financial services (e.g. banks, building societies, cash points, bureaux de change, short-term loan providers)
• Medical services (e.g. vets, dentists, doctors, osteopaths, chiropractors)
• Professional services (e.g. solicitors, accountants, insurance agents/financial advisers)
• Post office sorting offices
14. And properties not reasonably accessible to visiting members of the public.
15. Again, it explained this was a guide only and it was for a council to decide if a business was broadly similar in nature.

Council’s policy on the Discount

16. The Council did not create its own policy rather it adopted and applied the Government guidance. The Council was entitled to do this.

What happened

17. I have seen correspondence exchanged between Mr X or other representatives of the business and the Council. However, for ease, I will only refer to Mr X below, rather than each representative.
18. On 14 May 2020 Mr X contacted the Council seeking it apply the Discount. He explained his business carried out market research and opinion polling. It brought people together for this and in doing so provided food, and therefore hospitality. The property was also occasionally used for social gatherings. He therefore believed it qualified for the Discount.
19. Mr X did not hear from the Council. He chased a response by email and phone on 27 August.
20. On 23 September the Council issued its response. It refused to apply the Discount. It said Mr X’s business could not be considered “retail” but fell within professional services which were not supported.
21. On 24 September Mr X disputed the Council’s decision and complained of its delay. He said his business was wholly or mainly used to provide facilities to visiting members of the public and for the assembly of visiting members of the public, in line with the Government guidance. During the public opinion polling it provided hospitality in the same way as a sandwich shop. It also acted as a social gathering venue for clubs. It was not a professional services firm, rather it was classified as market research and opinion polling. And other councils had given such businesses the Discount.
22. Mr X chased a response by phone and email on 28 October.
23. On 2 November the Council responded, upholding its decision. It explained it did not consider the property wholly or mainly used for retail purposes. It considered the main uses of the property was an office and for conducting market research. Neither of these uses were eligible for the Discount. The business was not comparable to a coffee shop as members of the public did not walk in off the street to purchase a coffee. And clients had not visited the premises mainly to use those services. There was no evidence on the business’ website of the property being used for assembly and leisure which led it to believe this was not one of the main uses of the property. Finally, the Valuation Office Agency listed the property as 562 sq/m over five floors. Mr X had not provided any details as to which areas were used for the purposes listed. As such, the Council did not believe the property to be wholly, or mainly, publicly accessible. However, Mr X could provide additional evidence of the main uses of the premises if he wished to appeal.
24. Mr X then provided further evidence including a floor plan of the five floors. He explained the 3rd and 4th floor were used for opinion polling. The lower ground was mostly for opinion polling or gatherings. They used at least 400sq/m of the five storeys for business hosting and providing hospitality services to invited members of the public as visitors attending opinion polling groups and gatherings. He referred to its website for evidence. He also said another council had given its other property the Discount.
25. The Council told Mr X it did not consider the property was wholly or mainly used as a shop, restaurant or café selling goods and services to visiting members of the public. And it did not consider it was wholly or mainly used for assembly or leisure as might be said of public halls or club houses.
26. Mr X then contacted the Council by email and phone, though its position remained the same.
27. Mr X then discussed a separate grant scheme with the Council. He says its officer commented they would not have understood the nature of the business had they not spoken to Mr X.
28. In January 2021 Mr X contacted the Council about the Discount again. He suggested the Council could not have understood the nature of the business without speaking to them directly. He asked it to reconsider its decision.
29. The Council treated this as a stage 1 complaint.
30. In it stage 1 response the Council said it had already confirmed its decision. And it had further explained its reasons in a conversation with Mr X.
31. Mr X then said the Council had incorrectly recorded its sister company as the ratepayer. This meant it listed the business as an office which was incorrect. By the time Mr X spoke to the Council to clarify the nature of the business he was told it was too late to reconsider as the scheme had closed.
32. A third party then provided a statement in support of Mr X’s business. It confirmed the business was a research viewing facility providing a place for assembly for visiting members of the public. The facilities were for “public opinion polling”, and therefore “used for the provision of facilities to visiting members of the public and viewing of such activities” to then give their opinion on such activities. The use was that of “Public Opinion Polling” which gathers people together to talk and meet in a public room. This was no different from a hotel or a community centre’s meeting rooms being used to enable people to gather for a variety of business purposes. Its main purpose was to host meetings for members of the public to gather; these facilities were not designed to be used for other purposes. During the public opinion polling, viewing facility businesses provide hospitality to those visiting members of the public in the same way a hotel would to visitors using its meeting rooms, e.g. hot and cold food. This hospitality was paid by the clients who use the facilities, in the same way clients would pay for refreshments if supplied to those attending meetings in a hotel or a community centre.
33. The Council provided a further response to Mr X. It explained:
• The business was not a restaurant or cafe and any sale of refreshments was incidental to the purpose of the business.
• The premises were clearly not wholly or mainly used for the sale of food and drink.
• In addition there was a requirement that these sales were available to visiting members of the public. This was not the case as people who attended the viewings were invited and were not able to walk in off the street.
• Regarding assembly and leisure, the examples provided in the Government guidance gave a clear indication of the type of premises that should get the Discount: Public halls, clubhouses, clubs and institutions. Although, this list was not exhaustive, the direction it pointed to was far removed from what the premises were actually used for.
• And again, the premises must be available to visiting members of the public, rather than people who attend by invitation.

Findings

34. It is up to each council how they interpret and apply the Government guidance. Therefore, that other councils reached different decisions for the same or similar businesses does not mean the Council is at fault.
35. I cannot question whether the Council’s decision is right or wrong simply because Mr X disagrees with it. I must consider whether there was fault in the way the decision was reached.
36. Relevant to this case, the Government guidance says a property must be wholly or mainly used as a shop, restaurant, assembly or leisure facility, for visiting members of the public.
37. The correspondence provided shows the Council took into account relevant information about the business and considered this in light of the Government guidance. The Council found that although it sold some food and drink, the business was not wholly or mainly used as a shop or restaurant. And, while people visited the premises to take part in or view market research activities, it did not consider this similar to a club or other place of assembly. Additionally, the Council found the business was not available to visiting members of the public, rather people were invited. The Council concluded the business was not eligible for the Discount.
38. The Council did not base its final decision on its record that the business was an office, rather it gave Mr X the opportunity to evidence the nature of his business and then took this information into account.
39. The Council was not obliged to hold a discussion with Mr X. And there is no evidence its final decision was tainted by any inaccuracy as to how the business was listed. There is also no evidence the Council gathered information from the incorrect website or, even if it did, that any such information influenced its decision.
40. In light of the above, I am satisfied the Council took account of relevant information, disregarded any irrelevant information, considered and applied the Government guidance, and reached a decision based on the evidence. I find no fault in the way the Council reached its decision. Therefore, I cannot question that decision.
41. Mr X says if the Council applied the Government guidance it would have decided in his favour. However, the Council’s decision and reasons show otherwise.
42. I consider the Council’s delay in issuing its decision, from May to September amounts to fault. I recognise councils were under increased pressure during this time however this was a significant delay in providing important and time sensitive information. I consider an apology and payment is due to the business in recognition of the uncertainty suffered because of the delay. However, in comments on my draft decision, Mr X expressed dissatisfaction with these remedies. He felt the apology served no purpose and the payment was derisory. I consider it would be neither appropriate nor proportionate to ask the Council to carry out recommendations that Mr X feels would not provide adequate remedy. However, I also find no further remedy is warranted. I therefore make no recommendations.
43. Mr X has suggested the Council’s delay led to a rushed decision without proper consideration. However, the information I have seen shows the Council provided a considered decision with reasons.

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Final decision

44. I find no fault in the Council’s decision making but I find it at fault for its delay in issuing a decision. I have not made any recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman