Summary: We will not investigate this complaint about a business rates discount. It is for the courts, not the Ombudsman, to decide whether the Council unlawfully removed the discount without notice. On whether Business Y is eligible for the discount, the evidence suggests the Council reached its decision properly.

The complaint

1. Mr X complains about the Council’s actions in awarding and then removing the expanded retail discount (ERD) to Business Y. He says this caused Business Y unexpected difficulties when it already had less income than usual. Mr X also says the Council’s handling of communications has caused frustration.

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The Ombudsman’s role and powers

2. 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”.
3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. 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 there is not enough evidence of fault to justify investigating, or there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), 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)

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How I considered this complaint

6. I considered information provided by the complainant.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. In 2020 the Council introduced the ERD, enabling councils to give some businesses a full business rates discount. The aim was to help some businesses affected by the COVID-19 pandemic and related restrictions.
9. Mr X represents Business Y. In September 2020 the Council agreed to give Business Y the discount, which would save Business Y £500,000 in business rates. Nearly eight weeks later the Council removed the discount, saying it had been awarded wrongly.
10. Mr X argues that, once the Council granted the discount, it was unlawful to remove the discount without waiting until the end of a financial year and giving at one year’s notice of the revocation. He wants the Council to reinstate the discount and refund the rates Business Y has paid. The Council disagrees the legislation Mr X cited applies to the ERD. It does not accept it acted unlawfully.
11. It is for the courts, not the Ombudsman, to decide disputes about whether and how the law applies to a particular situation and whether an action was unlawful. Business Y can take court action this point. It would be reasonable to expect it to do so, as the Ombudsman cannot interpret that law and given the significant amount of money at issue.
12. Mr X is also dissatisfied with the Council’s response to his complaint, including comments Mr X understood as discouraging him from complaining to the Ombudsman. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue. So I shall not investigate the Council’s complaint-handling.
13. I note Mr X disagrees with the Council’s decision that Business Y did not qualify for the discount. As paragraph 4 explained, we cannot criticise a decision just because people disagree with it. Here, the Council considered the information it had about Business Y and the Government’s guidance on the expanded retail discount scheme. The Council gave reasons for treating Business Y as closer to ‘professional services’ (excluded from the discount) than an employment agency (which can receive the discount), with reference to the guidance that the discount was only for businesses ‘reasonably accessible to visiting members of the public’ and ‘wholly or mainly’ used for qualifying purposes. I recognise Mr X disagrees with the Council’s reasoning. However, the evidence suggests the Council reached its decision properly. Therefore I cannot question the merits of its decision, albeit Mr X disagrees and albeit there might be scope for reaching a different decision on the facts.

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Final decision

14. We will not investigate Mr X’s complaint because: part of it is for the courts; the Council properly reached the decision that Business Y was not eligible for the discount; and it would be disproportionate to investigate the Council’s complaint-handling in isolation.

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Investigator's decision on behalf of the Ombudsman