Summary: The Council was at fault because it wrongly considered city centre holiday properties were not eligible to pay business rates. However, the evidence does not show this led the complainant to miss out on COVID-19 business support grants. The Council was also at fault for not properly considering the complainant’s requests for reasonable adjustments. This caused him frustration, which the Council has agreed to remedy. It has also agreed to take steps to ensure it considers and implements reasonable adjustments for him in future.

The complaint

1. I will refer to the complainant as Mr C.
2. Mr C complains the Council has refused his claim for COVID-19 business support grants for his three furnished holiday let properties. This is because they were registered for council tax, and not business rates, on the qualifying date of 11 March 2020; but Mr C says the Council had wrongly advised him, in the past, the properties were not eligible to pay business rates.
3. Mr C, who is visually impaired, also complains the Council has failed to make reasonable adjustments to assist him in accessing its services.
4. In his complaint to the Ombudsman, Mr C also said:

• he had recently missed out on another grant for which he may have been eligible, because of a lack of support from the Council in accessing his services; and
• that a Council officer had told him, during a phone call, that its website was designed “deliberately” to be difficult to navigate.

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What I have investigated

5. I have investigated the points set out at paragraphs 2 and 3. I have not investigated the points set out at paragraph 4, for reasons I will explain at the end of this statement.

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The Ombudsman’s role and powers

6. 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)
7. 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. (Local Government Act 1974, section 26(5))
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”.

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How I considered this complaint

9. I reviewed Mr C’s correspondence with the Council, the Council’s case notes, and evidence provided by Mr C.
10. I have also shared a draft copy of this decision with each party for their comments.

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What I found

11. The following chronology sets out the key points of Mr C’s complaint, and the Council response to these points. For the sake of simplicity and to avoid repetition, I will not describe the full exchange of correspondence between them which occurred as part of this complaint.
12. Over a period of several years, Mr C purchased three residential properties in Manchester city centre. He runs these properties as a business, providing furnished holiday lets (FHLs) for paying guests. However, on 11 March 2020 (the ‘qualifying date’), each property was registered with the Council for council tax, rather than business rates.
13. On 16 February 2021, Mr C submitted a formal complaint to the Council about its refusal to pay retail, hospitality and leisure (RHL) grants for his properties under the Government’s COVID-19 business support scheme. Mr C forwarded the Council a copy of an email he had previously sent to it on 30 November 2020, which gave the details of his complaint.
14. The central points of Mr C’s complaint were that:

• he was visually impaired and struggles to read large amounts of text, and can find it difficult to access information from Government and Council websites;
• he had sought to apply for RHL grants before the scheme’s deadline of 28 August 2020. He could also provide evidence his properties’ registration for council tax was incorrect before the qualifying date, and that he had made several attempts to address this to no avail;
• the Council had historically believed that city centre FHLs were liable for council tax and not business rates, and a Council officer had confirmed to him in October 2020 the Council now understood this was incorrect. Mr C said he had received this inaccurate advice from the Council in the past when querying whether he should be paying council tax for his properties. This error had later meant he was not eligible for the RHL grant scheme (for which registration for business rates is a qualifying factor).

15. Mr C said all three of his FHLs had now correctly been registered for business rates by the Valuation Office Agency (VOA), with their effective dates backdated to 2017, 2018 and 2019 respectively.
16. The Council responded on 2 March. It explained the RHL grant scheme was discretionary, which meant the Council had the power to decide how to administer the scheme, and had adopted the guidance set out by the Government in doing so. In line with this, the Council had not paid grants to those not registered as a business rates payer on 11 March 2020, except where it could be shown they had an extant “appeal to the [VOA] against a property’s valuation” at that time. The Council said there was no evidence Mr C had challenged his properties’ valuation before the qualifying date.
17. The Council said it has also reviewed its records to ensure Mr C had received any other grants to which he was entitled. It confirmed it had paid local restrictions support (LRS) grants (which were not dependent on registration for business rates) for two of Mr C’s properties, and had not received an application for the third.
18. The Council therefore did not uphold Mr C’s complaint.
19. Mr C submitted a stage 2 complaint on 15 March. He said:

• the Council had not considered that it was because of its own error his properties were not registered for business rates on the qualifying date. The Council had confirmed in writing to Mr C on 6 October 2020 it had been at fault in this respect. As his properties would have been correctly registered before the qualifying date, had it not been for the Council’s error, it should pay him the grants;
• he had explained previously the reason he had not submitted an LRS grant application for his third property was because of a problem with the Council’s IT system, which had prevented him making the application. Mr C had sought an update on this matter but had yet to receive confirmation it had been resolved;
• the Council should also now apply small business rates relief (SBRR) for his third property and backdate it to the effective date of December 2017. Mr C said it was also because of a problem with the Council’s IT system that this had not yet happened.

20. The Council responded on 29 March. It refuted his claim that it was the Council’s fault his properties had not been registered for business rates on the qualifying date. The Council explained each property had been registered for council tax by its respective developer, and that this had remained the status quo until 28 October 2020, when the VOA had registered them for business rates and backdated the liability.
21. The Council said it had no record that Mr C had queried the properties’ registration before 20 August 2020, and so was not entitled to grants under the RHL scheme. It said “the change in advice on how [it] treated city centre flats does not affect this”.
22. The Council explained there had been a delay setting Mr C’s third property up for business rates because it was the only business property on its road. It said this was not a system error, and that this did not alter the fact it had not been registered for business rates on the qualifying date.
23. However, the Council explained the third property might be entitled to backdated small business rates relief, and invited Mr C to complete an application form for it to consider.
24. Mr C referred his complaint to the Ombudsman on 21 April.

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Legislative background

Small business grants and retail, hospitality and leisure grants

25. In March 2020, the government created schemes for councils to pay grants to small businesses and retail, hospitality and leisure businesses. This was because the COVID-19 restrictions affected so many of them.
26. A business’ right to a grant depends on its rateable value on the business rating list and its eligibility for certain business rate reliefs on 11 March 2020. Government guidance states 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.
27. The Valuation Office Agency (VOA), not the Council, compiles the rating list and decides on liability for business rates and rateable values.

Reasonable adjustments

28. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
29. 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 service providers 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.

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Analysis

31. There are two elements to Mr C’s complaint. For clarity, I will address each separately and in turn.

Eligibility for the RHL grant scheme

32. Mr C says his three FHL properties would correctly have been registered for business rates on the qualifying date, had the Council not previously given him inaccurate advice they should be registered for council tax instead. He therefore considers it is due to Council fault his properties were not eligible for grants under the RHL scheme.
33. However, the Council says it has no record of Mr C challenging his properties’ registration before August 2020. It does not accept its incorrect advice should affect its decision they are ineligible for the scheme.
34. I have asked both Mr C and the Council to give me their relevant records of the contact between them prior to the qualifying date of 11 March 2020. Mr C has explained that, due to his poor eyesight, most of his contact with the Council has been by phone. He therefore cannot provide copies of any written correspondence.
35. Mr C has provided me with copies of itemised phone bills. From this, I can see he made a call to a number (which I have verified is for the Council’s council tax department) on 12 July 2018, which lasted 29 minutes. He made another call to the same number on 24 May 2019, which lasted 21 minutes.
36. Mr C also tells me that, in particular, during the May 2019 call he explicitly asked whether his FHL properties should correctly be registered for business rates, rather than council tax. He says he did this because he had recently spoken to the owners of FHLs in other areas, who had told him he should be paying business rates and not council tax. However, the officer to whom he spoke on the phone dismissed this, and confirmed the registration for council tax was correct.
37. The Council has provided me with its case notes for each of Mr C’s FHLs. Both these calls are also reflected in the notes, but the notes do not mention any query about business rates. Rather, they both describe Mr C’s response to summons he had received for non-payment of council tax, and his efforts to set up direct debits.
38. I do observe that both notes are relatively brief, and, given the documented length of the calls, it is reasonable to assume the Council’s notes do not record every detail of the conversation. But, even accepting this, I cannot say – even on the balance of probabilities – that the evidence shows Mr C attempted to challenge the registration during these calls, or that the Council responded with its incorrect advice that he should continue to pay council tax.
39. I can also see no reference to business rates in any of the rest of the Council’s case notes before October 2020.
40. Under the guidance for the RHL scheme, to qualify for a grant, a business either had to be registered for business rates on 11 March 2020, or the relevant local authority had to be aware on 11 March 2020 that a re-assessment or appeal to VOA was pending. There was no scope in the scheme for retrospective eligibility, and so backdated changes to the rating list – as happened in Mr C’s case – did not allow a previously unregistered business to qualify.
41. If we were satisfied there was evidence a complainant sought to challenge their registration before the qualifying date, and was unsuccessful because of fault by the relevant local authority, we may be able to uphold a complaint on this basis.
42. However, in Mr C’s case, the evidence does not allow me to draw this conclusion. There is, as the Council says, no objective record that he queried his registration for council tax before the qualifying date.
43. This is not to say I dismiss Mr C’s version of events. I am particularly conscious the Council has accepted its previous position – that city centre FHLs should be registered for council tax, not business rates – was incorrect. His claim that he was given this incorrect advice, after explicitly querying his registration, is certainly credible therefore.
44. But this does not alter the fact there is still no objective evidence to support his claim. And, without such evidence, I can place only limited weight on Mr C’s comments.
45. As the Council has conceded its previous understanding of the correct position on city centre FHLs was incorrect, I am satisfied this supports a finding of fault. However, as the evidence does not allow me to conclude Mr C was negatively affected by this fault, I cannot find he has suffered an injustice as a result.
46. I find fault, which did not cause injustice, in this element of Mr C’s complaint.

The Council’s failure to make reasonable adjustments

47. Mr C also complains the Council has failed to make reasonable adjustments (RAs) when requested, making it difficult for him to access its services. This is because his visual impairment restricts his ability to read large amounts of text.
48. I asked the Council to comment on this element of Mr C’s complaint. In response, it said:

“[We] take accessibility of manchester.gov.uk very seriously and we are sorry to hear about any trouble [Mr C] had accessing the site. Our website and online forms are compliant with the Web Content Accessibility Guidelines (WCAG 2.1) at level AA, in accordance with accessibility regulations that apply to for public sector websites. We also use third party tools like SiteImprove to constantly access our website accessibility. SiteImprove scores manchester.gov.uk at 98.6 out of 100 for accessibility. 

“Alongside our legal compliance tools we offer other tools for website users at www.manchester.gov.uk/accessibility. These tools include options to change the font size, font and letter spacing alongside options to change colour palettes of the site. We offer high contrast, cream and contrast blue options which run alongside the standard view. Further to this, Browsealoud is another tool for accessibility we offer. Browsealoud can be accessed from the bottom right hand of every page and includes a screenreader, translation, screen mask, text magnifier and page simplification tools.”

49. I cannot, myself, say to what extent the availability of these tools could assist Mr C. However, I am conscious that – in exploring what adjustments we should ourselves make to assist Mr C – he has explained that he can use software to help him read emails, and that it is only paper documents which we should avoid sending him. It appears, therefore, that the accessibility tools offered by the Council are of the type which Mr C would find helpful.
50. This said, in Mr C’s correspondence with the Council, I note he makes several references to struggling to access its services. For example, in his stage 1 complaint of 16 February 2021, he said:

“Several times I have been promised calls of support, not once have I been called by anyone that can help … I find it incredulous that a simple phone call with … the business rates team could resolve this, however nobody will talk to me and support me, despite me having a disability that makes emailing and digesting online text incredibly difficult.”

51. The Council’s case notes also refer to Mr C’s difficulties. Its note of the call on 12 July 2018 records that Mr C is partially sighted, and that ‘large print’ bills had been requested (I do not know if this was implemented). Similarly, in the note of the call on 24 May 2019, Mr C is recorded as saying he had emailed previously asking for a call back to assist him setting up a direct debit (implying he had not received the requested call), although the note also records the Council saying it had received no such email.
52. I am satisfied, therefore, that Mr C had – on several occasions – explained to the Council he needed assistance, and in particular that he would benefit from calls back to help him with the various issues he needed to address. With the exception of the note about ‘large print’ council tax bills, I cannot see any meaningful consideration of Mr C’s needs, or any evidence the Council considered whether it needed to agree and implement reasonable adjustments for him.
53. Whether an adjustment is ‘reasonable’ is for the authority in question and, ultimately, the courts to decide. I cannot decide on the Council’s behalf whether Mr C’s request for a call back was reasonable. But I can find fault by the Council if it has failed to properly consider a request for adjustments, or if it has agreed adjustments but then failed to implement them, as these are administrative matters. I consider that to be the case here.
54. In terms of the injustice this has caused Mr C, I must again note the range of accessibility tools provided by the Council’s website. As I have said, I cannot say to what degree these are useful to Mr C (nor whether they were available during Mr C’s earlier contacts with the Council, for example in 2018), but I am satisfied they at least show the Council’s consideration of its anticipatory duty.
55. But, even if it is reasonable to expect Mr C to have relied on the available online accessibility tools, his requests to be called back were not complex. I consider he is justified in feeling frustrated at the Council’s failure to consider this, and I find this frustration amounts to an injustice.
56. I have considered the most appropriate steps the Council should take to remedy this injustice.
57. Given Mr C’s ongoing business in the city, it appears reasonable to assume he will have cause to contact the Council’s business rates department again in the future. To this end, I consider a relevant member of staff should contact Mr C to discuss precisely what adjustments he needs. The Council should then consider whether these are reasonable, and if it agrees so, take steps to ensure it implements them if and when he makes contact again.
58. I also consider the Council should offer Mr C £200 to reflect his frustration at its previous failure to consider his reasonable adjustments. I make recommendations to these effects.
59. I find fault causing injustice in this element of Mr C’s complaint.

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Agreed action

60. Within one month of the date of my final decision, the Council has agreed to:

• arrange for a member of its business rates department to call Mr C to discuss what adjustments he needs to facilitate his access to its service. The Council should then consider his request, and notify Mr C of its decision. If the Council does consider it reasonable, it should then ensure it implements the agreed adjustments during any future contact with Mr C. And, if there are other parts of the Council which it appears likely Mr C will have cause to contact in future, it should also refer this information to the relevant teams and departments; and
• offer to pay Mr C £200 to reflect his frustration at its failure to consider his previous requests for adjustments.

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Final decision

61. I have completed my investigation with a finding of fault causing injustice.

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Parts of the complaint that I did not investigate

62. In his complaint to the Ombudsman, Mr C also said:

• he had recently missed out on another grant for which he may have been eligible, because of a lack of support from the Council in accessing his services; and
• that a Council officer had told him, during a phone call, that its website was designed “deliberately” to be difficult to navigate.

63. Mr C did not raise either of these points in his complaint to the Council, and we are therefore unable to investigate them. If Mr C wishes to pursue these matters with the Ombudsman, he will first need to complete the Council’s complaints process.

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Investigator's decision on behalf of the Ombudsman