Summary: We will not investigate Mr X’s complaint about the Council’s decision not to award him expanded retail discount as there is no evidence of fault in the way the decision was made. We will not investigate Mr X’s complaint about the Council’s delay in responding to his enquiries about the discount as the injustice he claims is too speculative and is not the direct result of fault by the Council. The Council has offered Mr X £300 for his time and trouble and this provides a suitable remedy for the complaint.

The complaint

1. The complainant, Mr X, complains the Council failed to respond to his enquiries about expanded retail discount. He believes he should not be held liable for business rates for premises he owns during periods of national lockdown.

Back to top

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
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6))

4. We may decide not to start or continue with an investigation if we are satisfied with the actions a council has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)

Back to top

How I considered this complaint

5. I considered information provided by Mr X and the Council.
6. I considered the Ombudsman’s Assessment Code.
7. I shared my draft decision with Mr X and took account of his comments.

Back to top

My assessment

8. Mr X is a commercial landlord. He owns a shop which remained unoccupied from September 2019 until January 2021. He believes the Council should have awarded him expanded retail discount, which is a discount brought in to help businesses struggling during the COVID-19 pandemic, but the Council confirms he was not eligible as the discount only applied to premises which were occupied and in use.
9. Mr X contacted the Council about the discount on several occasions from October 2020 but did not receive a response until April 2021. He says this meant he was unaware he did not qualify for the discount.
10. I have seen no evidence of fault in the Council’s decision that Mr X was not eligible for expanded retail discount. Government guidance clearly explains the discount will be awarded in respect of premises which are occupied and being used for one of several qualifying uses and Mr X’s premises did not meet this criteria.
11. The Council has however acknowledged it delayed in responding to Mr X’s enquiries and also accepts it wrongly issued Mr X a court summons; it has offered Mr X £300 for its failings.
12. While Mr X suggests he could have handled the matter differently had the Council responded and confirmed he was not eligible for the discount, on balance I do not consider we could attribute the injustice he claims to the Council’s delay. This is because Mr X did not contact the Council until seven months after the start of the COVID-19 pandemic and could reasonably have accessed information about the scheme and determined himself that he would not be eligible for it.
13. The Government published guidance on 2 April 2020 and this clearly stated “This relief will apply to occupied retail, leisure and hospitality properties in the year 2020/21.” It also explained that “Properties that will benefit from the relief will be occupied hereditaments that are wholly or mainly being used…”. But at the point Mr X contacted the Council the premises were not in use and were unoccupied. He could and should therefore have been aware he would not qualify. In the circumstances we do not consider it was the Council’s sole responsibility to advise Mr X about the scheme.
14. We also could not quantify the amount of any injustice Mr X has suffered as it is too speculative. Mr X suggests that had he known he would not qualify for the discount his wife would have used the premises to open a shop but whether she could have done so successfully at short notice, and if Mr or Mrs X could have persuaded the Council this met the criteria for the discount is unclear. It would also only have applied from around 2 December 2020 at the earliest. This is because Mr X could not have expected an immediate reply from the Council at that point in the pandemic and a national lockdown from 5 November 2020 meant that non-essential retail premises were forced to close until 2 December.
15. The opening of any shop would also likely have incurred costs such as for insurance, licensing, utilities, legal fees and to change the layout of the premises, as well as the time and effort to bring in stock and prepare the premises for sales. It may also have affected the start date of the new lease Mr X signed with his tenant in January 2021. We simply cannot therefore say with any certainty how much Mr X would have saved had the Council responded sooner, even if we were to find it at fault for the delay.
16. In the circumstances the Council’s offer of £300 for Mr X’s time and trouble provides a suitable remedy for the complaint and it is unlikely we would recommend anything more.

Back to top

Final decision

17. We will not investigate this complaint. This is because there is no evidence of fault in the Council’s decision not to award Mr X expanded retail discount and we could not quantify the amount of Mr X’s injustice or attribute it to the Council’s delay.

Back to top

Investigator's decision on behalf of the Ombudsman