Summary: Mr X complained the Council wrongly refused a Local Restrictions Support Grant, which caused upset and distress, as well as adding to the financial difficulties caused by the COVID-19 pandemic. The Council was not at fault.

The complaint

1. Mr X complained the Council wrongly refused a Local Restrictions Support Grant. He said this caused upset and distress, and the lack of support added to the financial impact of the COVID-19 pandemic.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
3. 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”.
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 considered the information provided by Mr X and the Council, and relevant Government Guidance, as set out below.
6. Mr X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Background

Valuation Office Agency (VOA)

7. The VOA provides valuations and property advice to support taxation and benefits to the government and local authorities in England, Scotland and Wales. It compiles and maintains lists detailing the rateable value of 1.9 million commercial properties for business rates: the rating list.

Local Restrictions Support Grant (Closed) Addendum) (LRSG)

8. The Government provided support to businesses forced to close during the second national lockdown from 5 November to 2 December 2020. This was later extended to cover the third national lockdown from 5 January to 31 March 2021.
9. Eligible businesses were those required to close in line with Government restrictions. The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 sets out which businesses had to close by law. This included non-essential retail, leisure, personal care, sports facilities and hospitality businesses.

Restart grant

10. Support was provided to support specific types of business, including non essential retail businesses, to enable them to reopen safely after restrictions were lifted following the third national lockdown. To be eligible, the business must:
• be the liable ratepayer on 1 April 2021;
• be engaged in offering in-person services in the relevant sectors; and
• trading (engaged in business activity) on 1 April 2021.
11. The Guidance set out the types of businesses that could be considered non-essential retail and specifically excluded some business premise types including offices. However, those lists were not exhaustive and the Guidance said it was for councils to determine those cases where eligibility was unclear.

Additional Restrictions Grant (ARG)

12. The Government also provided discretionary funding for councils to support businesses that were required to close or had been severely impacted by the second national lockdown.
13. The Guidance, issued on 4 November 2020, said councils could decide how much funding to provide to businesses and which businesses to target. Councils could use the funding to support businesses that were important to its local economy.
14. The Guidance also said:

“In taking decisions on the appropriate level of grant, [councils] may want to take into account the level of fixed costs faced by a business in question, the number of employees, whether they are unable to trade online and the consequent scale of coronavirus losses”.

15. This Council’s discretionary scheme was decided in line with Government Guidance. To be eligible, the business must:
• Be trading in Kirklees;
• Have been open and trading as usual before the restrictions;
• Have been legally required to close or have been significantly impacted by local restrictions from 5 November 2020. Businesses not forced to close will be required to provide evidence demonstrating a significant impact on turnover/sales as a result of stricter social distancing being implemented;
• Be operating in one of more of the following sectors:
1. independent non-essential retail;
2. leisure;
3. hospitality;
4. visitor accommodation;
5. personal care and close contact services;
6. retail, hospitality, leisure supply chain;
7. entertainment and tourism (including events and supply chain businesses); and
8. community facilities/centres, including faith-based venues.

What happened

16. Mr X operates a business that sells and installs aquariums.
17. He applied for a Local Restrictions Support Grant (LRSG) on 18 November 2020. He emailed the Council asking for updates on 30 December 2020 and on 15 and 16 January 2021. The Council replied on 25 January 2021. It said it had issued a decision letter on 12 January 2021, which it had posted. It later provided a further copy by email.
18. The decision letter said the Council refused the grant because the business was not required to close as it was listed by the VOA as “an office and premises, not retail”.
19. In his complaint on 22 March 2021, Mr X said he had appealed the decision on 16 January 2021 but the Council had not taken his comments into account. I have not seen an email appealing the decision and it is unlikely to have been dated 16 January as Mr X said he had not received the refusal letter at that point. The Council responded on 22 March to confirm it would ask its reconsideration team to review the decision.
20. Mr X made a further complaint on 31 March 2021 in which he said the business did meet the Government criteria as the premises comprised offices and retail, and the Companies House registration confirmed the business was involved in retail. He also said the Council was wrong to suggest he should apply to its discretionary scheme.
21. On 10 April, Mr X asked the Council about the Restart grants. The Council replied that the LRSG was refused because the business was not required to close and therefore it was not eligible for a Restart grant. At this stage, the Council considered the premises were offices and not retail. Mr X did not ask the Council to reconsider this decision.
22. On 19 April 2021, the reconsideration team asked Mr X for further information and evidence, including:
• photos of the premises including the entrance, sales counter and products for sale.
• further information about how the business operated and why Mr X needed to see customers face-to-face;
• evidence of public liability insurance for 2020; and
• evidence of any advertising or social media during 2020.

It did not specify a deadline date for responding.

23. On 27 April, the reconsideration team wrote to Mr X again. It said:
• it had not received any further information from him and therefore its original decision would stand;
• the decision was final and the grant scheme was now closed; and
• it would ask the relevant team to consider whether the business was eligible for a discretionary grant, based on the information Mr X had already provided.
24. The team dealing with the discretionary scheme emailed Mr X on 5 May 2021 asking him to provide evidence the turnover was significantly affected by the COVID-19 restrictions. It said it needed evidence for the period November 2020 to January 2021, and for the same period in 2019-2020 for comparison. It said this could be in the form of profit and loss accounts, management accounts, sales records or bank statements. It asked Mr X to provide the information by 10 May 2021.
25. Mr X did not respond to the email and did not provide any further evidence. The Council therefore refused the discretionary grant on the grounds that he had not responded to its request for further information needed to process the application.

My findings

26. We are not an appeal body. Unless there is fault in the decision-making process, we will not comment on the Council’s decisions.
27. The Council refused the LRSG initially because the premises from which the business was trading were on the rating list as “office and premises”. The rating list is maintained by the VOA. The VOA’s website confirms the description the Council used, and shows it was last updated in May 2020. The Council was entitled to rely on this information when making its original decision. The Government did not require offices to close during the second national lockdown.
28. The Council sent its original decision by post on 12 January 2021. It is unclear why Mr X did not receive it but a further copy was sent by email after the Council became aware of this. There was no undue delay in sending the original decision, nor in sending a further copy.
29. Following Mr X’s complaint in March 2021, the Council asked its reconsideration team to review the decision. It asked for further information and evidence about the retail aspect of the business, but Mr X did not provide it. It was therefore not at fault for confirming the original decision.
30. Based on the information it had, the Council decided the business premises were offices and were not required to close. On this basis, it also decided it was not eligible for a Restart grant to help it to reopen safely. Although Mr X challenged the LRSG decision, he did not provide the evidence requested to show the business was retail as well as offices. If he had done so, and the Council changed its view as a result, I would have expected it to also review its Restart Grant decision in light of the new information. However, the Guidance for the Restart grant expressly excludes office buildings and, in the absence of evidence to show it was in fact a retail business, the Council was entitled to decide the business was not eligible for the Restart grant.
31. The Council also considered whether the business was eligible for a discretionary grant on the basis it was significantly impacted by the COVID-19 restrictions but Mr X did not provide evidence of this. In the absence of appropriate evidence to show the impact of the restrictions, the Council was entitled to refuse the grant. Although the grant was refused, it was not fault for the Council’s reconsideration team to suggest this was considered.

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Final decision

32. I have completed my investigation. I have not found fault.

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Investigator's decision on behalf of the Ombudsman