Harlow District Council (21 011 768)

Category : Benefits and tax > COVID-19

Decision : Not upheld

Decision date : 25 Mar 2022

The Ombudsman's final decision:

Summary: Miss X complained the Council unfairly refused her a business grant and was poor in its communications, causing financial loss and distress. We find no evidence of fault by the Council.

The complaint

  1. Miss X complains the Council unfairly refused her a business grant and was poor in its communications, causing financial loss and distress.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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”.
  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)

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How I considered this complaint

  1. I spoke to Miss X and I reviewed documents provided by Miss X and the Council.
  2. I gave Miss X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Principles of good administrative practice

  1. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction “Principles of Good Administrative Practice”. We issued an addendum in response to the COVID-19 pandemic; “Good Administrative Practice during the response to Covid-19”. This shows we expected similar standards from councils, even during crisis working. The following points are relevant in this case.
    • The basis on which decisions are made and resources allocated, even under emergency conditions, should be open and transparent.
    • Decision reasons should be clear, evidence based and where necessary explained in the particular context and circumstances of that decision.
    • Councils should have clear and accessible appeal routes.

Additional Business Support scheme (ABS scheme)

  1. The Council developed a discretionary grant scheme to support businesses impacted by the delay in lifting COVID-19 restrictions.
  2. The Council’s published policy said, to be eligible, the business must:
    • have been trading on 1 January 2020, before the start of the pandemic
    • have continued to be adversely affected by the pandemic (for example, reductions to customer or sale numbers and reduction in cash flow so that meeting day to day working capital requirements has become unaffordable and unsustainable)
    • be located within Harlow in Essex (no requirement to be occupying rateable premises)
    • have been excluded from accessing other coronavirus financial support schemes or income, including financial support and has been unable to cover fixed costs
  3. The Council’s policy says it has limited funds and it will close schemes when it has exhausted its funds.
  4. The policy also says there is a one stage internal review process if someone is unhappy with their decision. Requests for a review should be made in writing within 14 days of a decision. New information may be provided.

What happened

  1. On 12 July 2021 Miss X applied for a grant under the Council’s ABS scheme. She explained the COVID-19 restrictions resulted in a drop in footfall and difficulty paying fixed building costs.
  2. The application form asked for a recent bank statement and information that showed how the restrictions impacted the business. It said this could be comparable trading information between this and previous years and/or details of fixed costs that were unavoidable to the business regardless of its level of turnover.
  3. Miss X enclosed a recent bank statement only.
  4. On 14 July the Council asked Miss X to provide evidence of the impact to her business by 23 July. It said this could be:
    • Comparable trading information for the period of the extended lockdown since 21 June and previous years or
    • Details and evidence of the business’ fixed costs that are unavoidable regardless of turnover.
  5. On 16 July Miss X sent the Council trading information. She set out her trading figures from January to June 2021 and showed the percentage downturn when compared to the six months from June to December 2019.
  6. On 20 July the Council replied that Miss X had not provided the trading figures for 2019. It suggested she could provide bank statements from 2019 which it would then compare with the 2021 bank statement she had already provided.
  7. On the same day Miss X told the Council she had provided the 2019 trading figures in her previous email. She said she used PayPal to collect payments and so her bank statement would not show trading figures.
  8. The Council further explained Miss X had not compared figures over the same dates. It suggested she provide sales figures from 1 June 2021 to 20 July 2021 and 1 June 2019 to 20 July 2019 and PayPal statements in support. It outlined how to get PayPal statements.
  9. Miss X says she sent the Council the information requested by email on 20 July however the Council says it did not receive this.
  10. On 3 August the Council told Miss X she had not provided the evidence requested and so it would not pay a grant. It said she could ask for a review of its decision with reference to its policy.
  11. On the same date Miss X told the Council she had already sent the evidence and she forwarded her email of 20 July. This provided PayPal records of total sales from 1 June 2019 to 31 July 2019 and the same record for the period 1 June 2021 to 20 July 2021. I note the email does not show details of the recipient.
  12. Miss X chased the Council for a response on 5 and 12 August. On 12 August she said she had provided the information requested and wanted to appeal or complain about the Council’s decision. She asked where to send her appeal.
  13. The Council replied on 12 August. It said it had no record of her email of 20 July and without an email address could not investigate further. However, the documents provided on 3 August 2021 were not the PayPal statements requested which would include her PayPal ID, Merchant ID, name and address, in addition to full details of all transactions - payments, receipts and fees etc. It said the documents provided did not evidence her business was impacted by the delay in the Government's relaxation of COVID-19 restrictions. It confirmed it had reviewed her application and could not make payment.
  14. The Council sent Miss X a further email on 20 August. It explained the application form required Miss X to provide supporting evidence of how her business had continued to be impacted by the extended restrictions. The PayPal statements requested would have given a full breakdown of all receipts and expenditure. The data she provided did not provide sufficient detail to establish the trading profit of the business for the relevant periods. As she failed to provide this information to support her application it was rejected. The ABS scheme was now closed. However, she may wish to apply for its Additional Restrictions Grant scheme.
  15. On the same date Miss X complained she had supplied trading figures as requested. The Council initially delayed telling her the reasons for rejecting her application and it had now delayed telling her the outcome of her appeal until after the scheme closed. The following day a third party sent the Council the PayPal statements and evidence of fixed business costs, on Miss X’s behalf.
  16. In response to the complaint the Council said it was clear what information it needed. It needed to compare figures from 2019 and 2021 to ensure it supported those impacted by restrictions and it asked for this evidence on the application form. It did not receive any email on 20 July. There was a gap in its communications from 3 to 7 August as it was waiting to hear from her. Details of how to appeal were in its policy. It did not uphold the complaint.
  17. Miss X said the Council asked for sales reports which she sent. It had delayed in communications and shown a lack of empathy.
  18. The Council responded to reiterate previous points.
  19. Miss X said she did send an email on 20 July. She had chased the Council for a response yet it did not reply until 3 August; it had not addressed this. She had sent a PayPal sales report as requested but these do not show every transaction. If the Council had replied in time she would have sent the transaction report.
  20. The Council repeated its previous responses. It said it could not see she had asked for details of its appeals process. It had not delayed in its communications. She could contact the Ombudsman.
  21. In comments on a draft decision Miss X said:
    • If the Council had told her in plain English why it refused her application and the information she needed to provide, she would have provided this immediately;
    • It was unacceptable the Council took two weeks to reply to her;
    • The Council did not follow its own policy; to log an appeal for consideration by an elected councillor. She has provided a copy of the policy relied on and suggests the Ombudsman contact her councillor. However, I note Miss X has referred to the Additional Restrictions Grant scheme, a separate policy with its own rules;
    • She could not ask for a review on 3 August as she was unaware why the Council had declined her application. She resent information on 3 August and the Council should have accepted this as it was the information requested although in a different format;
    • The Council had discretion who to support with all grants yet denied her a grant;
    • The Council discussed her case on 13 August yet did not reply to her until 20 August;
    • The Council could have asked that she provide the statements in response to her email of 3 August.
  22. In comments on a draft of this decision the Council said it did not forward Miss X’s email of 12 August 2021, in which she asked where to appeal, to the team considering her grant application. It apologised for this.

Findings

  1. 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. We expect councils to take into account relevant information and decide in line with law, policy and Government guidance.
  2. The Council decided to support those impacted by ongoing COVID-19 restrictions and requested evidence of this impact. The Council was entitled to establish such a policy.
  3. I consider the Council’s request for evidence as set out on its application and in its follow up email was not very clear. However, I am satisfied the Council gave Miss X very clear instructions on the evidence to provide by email on 20 July. It asked for comparable trading figures and specifically for PayPal statements. The Council had not received this by 3 August and so it rejected the grant request, giving reasons for its decision. I find no fault in the Council’s decision making.
  4. I accept Miss X attempted to send the Council evidence on 20 July. However, the Council has no record of receipt. Bearing in mind the copy email provided showed no recipient address I am unable to find the Council was at fault.
  5. I acknowledge Miss X did not understand the Council’s response of 3 August, as she thought she had already provided the evidence requested. However, at that stage the Council had no record of her email of 20 July and had no knowledge that she had tried to provide any evidence. It provided a response based on the information it held at the time. I therefore cannot find it at fault.
  6. The Council’s email of 3 August said Miss X could ask for a review of its decision. And the Council’s published policy also makes clear the review process. I am therefore satisfied the Council has a clear appeals process.
  7. I acknowledge Miss X replied to the Council on 3 August with evidence, chased for a response and then asked how to appeal. And I appreciate she would have been anxious for a quick reply. However, I am also satisfied the Council acted in line with its policy in treating Miss X’s correspondence as a review request and it responded in a timely manner on 12 August. I recognise this took longer than Miss X would have wanted however this does not amount to undue delay or fault.
  8. The Council provided Miss X its decision upon review on 12 August and gave reasons for again rejecting her grant request. It said she had not provided the PayPal statements requested and explained why it needed these. I find no fault in its decision making. The Council did not have to allow Miss X another opportunity to provide evidence or a further review ahead of any closing date. In any event, Miss X did not provide anything further before the scheme closed on 20 August.
  9. I acknowledge Miss X considers the Council should have accepted the evidence she provided on 3 August. However, the Council explained why this was inadequate. The Council gave evidence based reasons for its judgement; I cannot question its decision where it has followed a proper decision making process.
  10. The Council did not publish a scheme closing date but its policy warned it would close once funds were exhausted. I find no fault in this regard.
  11. Miss X provided the necessary evidence on 21 August but this was after the scheme had closed. I cannot say Miss X missed out on a grant due to any fault by the Council because it told her what evidence to provide and she had chance to provide this before the closing date.
  12. On review of the complaint correspondence I am satisfied the Council responded to the complaint appropriately. I note it told Miss X it had no record of her asking about its appeals process, although it is clear she did. However, I do not consider this oversight reaches our threshold for a finding of fault.

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Final decision

  1. I have completed my investigation. This is because I find no evidence of fault in the Council’s decision making or communications with Miss X about its business grant.

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Investigator's decision on behalf of the Ombudsman

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