Summary: There Council was at fault for making contradictory decisions about the status of the complainant’s business. The Council has now reviewed the matter and decided to award the business a COVID-19 restart grant.

The complaint

1. I will refer to the complainant as Mrs B.
2. Mrs B says the Council said her business must remain closed, under COVID-19 restrictions, in March 2021, because it did not constitute an education provider. However, when she later applied for a grant under the restart scheme, the Council refused on the basis it was an education provider, and therefore ineligible. She complains her business has missed out either on the grant, or an opportunity to open for trade.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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. 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”.

Back to top

How I considered this complaint

6. I reviewed Mrs B’s correspondence with the Council, and the Government guidance on the COVID-19 restart grant scheme.
7. I also shared a draft copy of this decision with each party for their comments.

Back to top

What I found

8. Mrs B’s runs a business offering a form of tuition to paying customers.
9. In March 2021, education providers were permitted by the Government to begin re-opening from COVID-19 lockdown restrictions. Mrs B contacted the Council to ask what category it considered her business fell into, and whether it could re-open as an ‘education provider’ alongside others.
10. The Council replied to say the business was part of the leisure industry, and not an ‘educational institution’ in the normal sense. Mrs B therefore did not re-open her business.
11. In May, Mrs B applied to the Council for a grant under the restart scheme. The Council rejected Mrs B’s application, because it considered her business was “not in an eligible sector”.
12. Mrs B asked the Council to reconsider its decision. She said her business did not easily fit into any of the eligible categories, but said it was somewhere between “art centre / clubs / community hall / conference centre”, and definitely not any of the non-eligible categories. Mrs B also highlighted the email she had received in March, describing her business as ‘leisure’, and forwarded a copy.
13. But the Council quickly replied, maintaining its refusal on the basis Mrs B’s business provided “training, tuition or lessons”, and was therefore excluded from the restart grant scheme.
14. Mrs B referred her complaint to the Ombudsman on 16 June.

Back to top

Legislative background

Restart Grant

15. In March 2021 the Government announced the COVID-19 restart scheme, to provide grants to businesses which had been forced to close under the most recent lockdown. The scheme was to be administered by local councils, and provided for one-off grants of up to £6000 for the non-essential retail sector, and up to £18,000 for businesses in the hospitality, accommodation, leisure, personal care and gym sectors.
16. The Government guidance on the scheme set out general principles for councils to follow, in deciding whether a particular business fell into the eligibility categories. It recognised some businesses do not clearly fit into a category, and gave councils discretion in deciding how to apply the scheme in such cases.
17. However, the guidance also clearly directed councils to regard certain categories as ineligible for a grant. This included “education providers including tutoring services”.

Back to top

Analysis

18. As she recognises, Mrs B’s business defies easy categorisation. Under such circumstances, the Government guidance leaves it for the Council to decide whether it should be eligible to receive a restart grant. The Ombudsman does not provide a right of appeal against contested Council decisions, and so we cannot come to our own view on a business’s eligibility, or overturn the Council’s decision.
19. However, while the Council had discretion in how it considered both issues here, its decisions were contradictory – in March it told Mrs B the business could not re-open because it was not an education provider, but then, in May, refused her application for a restart grant because it was an education provider. These things clearly cannot both be true.
20. The Council was therefore at fault for this. This caused Mrs B an injustice, because her business missed out either on the restart grant, or on the income it would have generated by opening sooner.
21. In my draft decision, I proposed to uphold Mrs B’s complaint, and recommended the Council reconsider the matter and settle on one description for the business. I also recommended it should then offer Mrs B an appropriate financial remedy, equivalent to either the restart grant, or to the income the business lost by remaining closed unnecessarily, depending on which decision the Council made.
22. In its response to my draft decision, the Council accepted my findings. It said it had now reconsidered the matter, and decided it should have paid Mrs B the restart grant.

Back to top

Agreed action

23. The Council has agreed to pay Mrs B the restart grant.

Back to top

Final decision

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

Back to top

Investigator's decision on behalf of the Ombudsman