Summary: There was no fault in how the Council decided the level of grant funding to provide personal care businesses, under its discretionary restart grant scheme. It was for the Council to devise the scheme and it has applied it properly. The complainant also says she was given misleading information by the Council, but we have ended our investigation of this point, because it would be disproportionate to continue it.

The complaint

1. I will refer to the complainant as Mrs N.
2. Mrs N complains the Council:

• decided to put personal care businesses in the lower payment strand of its discretionary restart grant scheme, while equivalent businesses were in the higher payment strand of the national scheme; and
• originally informed her she would receive a higher grant amount than she eventually received.

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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. 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)
5. 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 further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))
6. 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

7. I reviewed Mrs N’s correspondence with the Council, and its discretionary restart grant scheme policy.
8. I also shared a draft copy of this decision with each party for their comments.

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What I found

9. The following chronology gives an overview of the key points relevant to this complaint. It is not intended to provide a detailed account of every contact between Mrs N and the Council.
10. Mrs N runs a personal care business from two separate premises in the Council’s area. She does not lease or rent either premises in full, but instead sub-leases a space in each one from their main tenants. Because of this, she does not pay business rates for either premises.
11. In May 2021, the Council opened its discretionary restart grant scheme. Similar to the national restart scheme, its purpose was to provide financial support to businesses which had been significantly affected by COVID-19 lockdown restrictions. However, the Council’s scheme was to give grants to businesses which had been excluded from the national scheme – principally those which were not liable to pay business rates, which was a qualifying criterion of the national scheme.
12. Both national and discretionary schemes placed businesses in one of two payment strands – a lower and a higher strand – to reflect the fact some businesses were likely to have suffered greater losses as a result of lockdown. The national scheme placed personal care businesses in its higher payment strand; but, in devising its discretionary scheme, the Council had placed personal care businesses in the lower strand.
13. Between May and July, Mrs N pursued a complaint with the Council about this decision. She said it was not logical for the Council to place personal care businesses in the lower payment strand, and that she in fact had higher costs than some similar businesses which had a rates liability (and therefore qualified for the higher strand of the national scheme).
14. Mrs N also complained the Council had told her she would receive a grant “to cover till the end of June”, and that she had calculated this would work out at approximately £4000 for each of her business locations. However, the eventual grant she received under the discretionary scheme was approximately £2600 for each business instead. She provided a copy of a message which she said supported this part of her complaint.
15. In response, the Council explained the local scheme was entirely discretionary, and it was not required to mirror or follow the national restart scheme. It said it considered that, due to their nature, personal care businesses without a rates liability were likely to have less costs than their counterparts with a liability, and it had therefore put them in the lower strand of its scheme.
16. The Council said the message she had received (which was from a separate third-party organisation which the Council contracts) explained there would be “ARG [Additional Restrictions Grant] grants continuing until June. That ARG grant is the ARG Restart Grant”.
17. Mrs N referred her complaint to the Ombudsman on 28 July.

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Legislative background

18. The government has given councils some funding for discretionary grants to businesses. Councils should have a policy on making these discretionary grants.
19. The guidance gives councils discretion on awarding grants, stating:

‘Where limits to funding available for this scheme require local authorities to prioritise which types of businesses will receive funding, it will be at the local authorities [sic] discretion as to which types of businesses are most relevant to their local economy. There will be no penalty for local authorities because of their use of discretion to prioritise some business types.’ (Department for Business, Energy and Industrial Strategy: Local Authority Discretionary Grants Fund – guidance for local authorities, paragraph 26)

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Analysis

20. The Ombudsman’s role is to review how councils have made decisions. We may criticise a council if, for example, it has not followed the appropriate procedure, failed to take account of relevant evidence, or not properly explained why it has made a decision. But we do not make operational or policy decisions on councils’ behalf, and we cannot uphold a complaint simply because someone disagrees with a decision a council has made.
21. I asked the Council to elaborate on its reasons for placing personal care businesses in the lower payment strand of its discretionary restart grant scheme. In response, it said:

“The Council recognised that some businesses, such as those that rent space in a building, for example a non-rated personal care business, might not be responsible for maintaining a building, and although they may continue to face some business-related costs, they are unlikely, in most circumstances, to be at the same scale as businesses with premises and facilities to maintain and service. Evidence from previous schemes demonstrated that the non-rated personal care businesses supported were businesses that rented a chair in a salon and therefore were unlikely to face the same fixed costs as businesses, rated or not, that have premises and facilities to maintain.

“For this reason, alongside the need to ensure the scheme was affordable within the financial envelope, and to continue supporting as many businesses as possible it was decided that these businesses would continue to be supported, but at a lower rate than rated personal care businesses which have buildings and premises and the costs associated with these.”

22. I am satisfied this provides a robust and logical rationale for its decision to place personal care businesses in the lower payment strand. Although the discretionary restart grant scheme appears to mirror the national scheme in some respects, as the Council has said, it was entirely at its own discretion to devise. It was entitled to use its judgement to decide to place personal care businesses in the lower strand, and I have no grounds to criticise it for this. There is no evidence of fault here.
23. I acknowledge Mrs N’s comments that her business has higher costs than some other, similar businesses she is familiar with, which have a rates liability. I cannot comment on the reasons why this may be the case.
24. But the various grant schemes were designed to provide businesses with at least some financial support during lockdown and its aftermath; they were not intended to offer individual, means-tested grants, tailored to each business’s specific circumstances. So the fact Mrs N’s business has not benefitted as much as some others does not mean there was fault in the Council’s administration of the schemes.
25. With respect to the second part of Mrs N’s complaint, the Council commented:

“We cannot comment or provide a view on what [Mrs N] believes. No evidence has been provided, including through the 2 stage complaints process, on the erroneous message [Mrs N] claims to have received. [Mrs N] contacted her MP and stated that she had been told by the Council that she wouldn’t get the restart grant as she was a non/rate payer but would be getting a grant payment to cover till the end of June and that when she worked that out would be over £4,000 per business. The [discretionary] Restart grant was introduced to cover the April to June 2021 period and intended to assist business as restrictions eased. That seems to be where the figures quoted by [Mrs N] in her complaint have come from.”

26. However, Mrs N has provided me with a copy of the message she received from the third-party. The message says:

“The restart grant will not be available to non rated businesses. Instead the ARG grants will continue to be paid until the end of June…”

27. Given the message referred to ‘grants’ (plural), I can appreciate why Mrs N was confused when she ultimately received only a single grant for each business. I do not consider it can reasonably be read to mean the Council would soon launch its own restart grant scheme, which essentially is what it told her it meant, when she sent a copy of the message to the Council as part of her complaint.
28. And, even putting this to one side, I must also question the Council’s assertion, to me, that Mrs N had not provided any evidence to support her complaint. This is demonstrably untrue, given the Council actually commented on the message as part of its response to Mrs N’s complaint.
29. However, even accepting this, I do not consider this amounts to a significant matter. At the most it appears the person who wrote the message to Mrs N was not up-to-date on the Council’s plans, at the time, for further grant schemes. This is clearly not ideal, but given the complexity of the various support schemes which have existed at one time or another during the pandemic, it is understandable.
30. More importantly, I am not persuaded this represents a significant injustice to Mrs N. I do not consider the text message could reasonably be read as a guarantee she would receive a certain amount of money, especially as it does not mention a figure at all. It follows, therefore, I do not consider I can hold the Council responsible for misleading her as to how much grant money she would receive.
31. Taking this together, I consider the Council’s handling of the ‘text message’ issue to be a shortcoming, but not significant enough to make a finding of fault.

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Final decision

32. I have completed my investigation with a finding of no fault.

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Investigator's decision on behalf of the Ombudsman