Summary: Mrs X complained about the Council’s decision on her eligibility for a Restart Grant, causing her financial loss and distress. We found no fault in the Council’s decision making process.

The complaint

1. Mrs X complains the Council decided on her eligibility for a Restart Grant incorrectly and contrary to the Government guidance. She says she has missed out on £5333 and suffered distress.
2. Mrs X also complains the Council has decided incorrectly for others.

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What I have investigated

3. I have investigated the complaint at paragraph 1. At the end of this decision I have set out why I have not investigated other matters.

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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. 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”.
8. 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 any fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6))
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)

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How I considered this complaint

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

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What I found

Restart grant

12. In March 2021 the Government introduced a grant to help businesses recover from restrictions imposed during the COVID-19 pandemic. It issued guidance to councils on administering this Restart Grant.
13. A non-essential retail business with a rateable value of £15,000 or less would receive £2667.
14. A hospitality, accommodation, leisure, personal care or gym business premises with a rateable value of £15,000 or less would receive £8000.
15. Councils were to decide which category a business came within. If a business fell within two categories councils were to decide based on the main service offered.
16. The primary principle was to support businesses that offered in-person services, where the main service and activity took place within a property, in the relevant sector.
17. The Government provided an indicative list of businesses in each sector. However, it was for councils to use their local knowledge and the definitions and criteria set out to decide on eligibility.
18. A non-essential retail business was a business used mainly or wholly for the purposes of retail sale or hire of goods or services by the public. It included gift shops and florists.
19. A hospitality business was a business whose main function was to provide a venue for the consumption and sale of food and drink. It included restaurants and cafes.
20. A leisure business was a business that provided opportunities, experiences and facilities, in particular for culture, recreation, entertainment, celebratory events and days and nights out. The definition of a leisure business excluded all retail businesses. It included wedding venues.
21. A personal care business was a business which provided a service, treatment or activity for the purposes of personal beauty, hair, grooming, body care and aesthetics, and wellbeing. It included hairdressers and beauty salons.
22. The Government issued a FAQ list to support the guidance. Relevant to this case:

“Are bridal shops and tailors eligible for Strand One or Two of the Restart Grant?

Bridal shops and tailors are eligible for Strand One of the Restart Grant, under the non-essential retail category. Any grants paid in error to these businesses under Strand Two will need to be recovered from the businesses.”

What happened

23. In April 2021 the Council offered Mrs X a Restart Grant of £2667 as a non-essential retail business.
24. Mrs X told the Council she was a wedding and event stylist/planner. She considered her business fell between the categories of hospitality and entertainment. 95% of her business relied on weddings taking place at full capacity and so it was heavily affected by the COVID-19 restrictions on weddings. She believed she was entitled to the £8000 grant.
25. Mrs X sent the Council further information having read the Government guidance. She said her business fell within the category of leisure as 95% of the business relied on weddings and other celebratory events taking place. She quoted from the guidance in support.
26. Mrs X contacted the Council again on 6 May. The Council had since paid her the grant of £2667. She gave further reasons in support of categorizing her business as leisure or personal care. Mrs X explained clients would attend her premises for an in-person consultation but these were limited by the restrictions. Further, that weddings remained under significant restrictions. She quoted from the guidance, to support that she had a leisure business that provided opportunities or experiences for celebratory events. Her business was 95% reliant on weddings and 100% reliant on clients coming to the premises for in-person services.
27. Mrs X chased the Council for a response on 13 May. She said it was unfair that hairdressers automatically received the higher grant when her own business was more affected.
28. The Council responded on 14 May. It said it had considered the information Mrs X provided and the Government guidance. It acknowledged her business was associated with sectors that were still subject to COVID- 19 restrictions. However, her business was operating as a non-essential retail premises and could reopen from 12 April. It was satisfied it correctly classed her business as trading in the retail sector and so had provided the correct level of funding. It could not consider any further appeal.
29. Mrs X replied on 14 May. She repeated her business fell within the leisure category and where a business fell into two categories the council should consider the main service. She said the Council had been considering her case and she had not yet appealed. Further that she was not just associated with relevant sectors, rather her business was within those sectors.
30. Mrs X wrote further to the Council on 26 May. She repeated her reasons as to why her business fell within the leisure category. She said it was not relevant her business could reopen from 12 April as other businesses could also reopen yet received the higher grant. She enclosed records to show her business was more than 50% reliant on wedding services.
31. The Council responded on 5 June maintaining its previous decision. It said it appreciated Mrs X’s sector was impacted by the reduction in marriage ceremonies, however her business remained within the non-essential sector. It was not excluded from the non-essential retail designation and it did not meet the criteria of the leisure sector. She could not appeal but she could contact the Ombudsman.
32. Mrs X then contacted the Ombudsman. She said the Council’s decision was contrary to the Government guidance. She said she was also aware of hairdressers and tattooists that did not receive the higher award as they should have.
33. The Council told the Ombudsman it took data from the Council’s Business Rates system which classified the business as “shop and premises”. It considered the guidance and the FAQs which made specific reference to bridal shops. It also considered the list of businesses under each category as set out in the guidance. Based on this guidance it remained of the view it correctly classified the business as a strand 1 non-essential retail business. While it welcomed the additional evidence supplied by Mrs X, its review confirmed its original decision.
34. I asked the Council to comment on Mrs X’s view that her business was a “leisure business” in line with the Government guidance because it is a “business that provides opportunities, experiences and facilities, in particular for culture, recreation, entertainment, celebratory events and days and nights out.”
35. In response the Council said
• It did not believe, based on the evidence available, the business should be designated as a leisure business.
• It remained of the opinion the Valuation Office Agency (VOA) correctly classified the property as a “shop and premises”.
• It did not dispute customers needed close and personal contact in the shop. However, this level of customer interaction would not differ from other strand 1 non-essential retailers.
• The Department for Business, Energy & Industrial Strategy (BEIS) issued specific guidance regarding bridal shops as they were aware of queries from the industry.
• The Restart Grant guidance said the definition of a leisure business should exclude all retail businesses.

Findings

36. The Council initially considered the VOA description of Mrs X’s business as a shop and premises and, in line with the Government guidance, decided to award the non-essential retail grant. I find no fault in its decision making.
37. Mrs X challenged the Council’s decision and gave it further information which it then considered. I am therefore satisfied the Council did offer a right of review.
38. The Council considered the information Mrs X provided but its decision remained the same. It would have been helpful if it could have provided reasons for its view that the business did not meet the criteria of a leisure business. However, it is up to each council to interpret and apply the Government guidance as they see fit. I am satisfied the Council carefully considered the Government guidance and its application in Mrs X’s case. While I recognise Mrs X interprets the guidance differently to the Council, the Council has followed a proper decision making process and so I cannot find fault.

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Final decision

39. I have completed my investigation. I find no fault in the Council’s decision on Mrs X’s entitlement to a Restart Grant.

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Parts of the complaint that I did not investigate

40. I did not investigate Mrs X’s complaint that the Council decided wrongly for other businesses as this is premature, any fault did not cause her injustice and anyone affected can raise their own complaints if they wish.

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Investigator's decision on behalf of the Ombudsman