Summary: Mr B complained the Council failed to sufficiently support his business both when refusing a grant to support the business during the COVID-19 pandemic and more generally. We do not uphold the complaint finding no fault by the Council.

The complaint

1. I have called the complainant ‘Mr B’. He complains the Council has failed to sufficiently support his business. There are two parts to this complaint. First, in December 2020 the Council refused a grant to support the business during the COVID-19 pandemic. Second, Mr B considers that more generally the Council is not doing enough to support his business. Mr B says this is due to both direct and indirect discrimination by the Council. Mr B says this discrimination arises because of his ethnic background and because of past communications he has had with the Council where he made complaints about it.
2. Mr B says as a result the Council is failing to support his business allowing it to grow and prosper. He also suffers distress as the Council’s actions remind him of previous experiences of racial discrimination.

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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 an organisation’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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)
6. If we are satisfied with an organisation’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

7. Before issuing this decision statement I considered:

• Mr B’s written complaint to the Ombudsman and any supporting information he provided, including that in letters, emails and telephone conversations with this office;
• Information provided by the Council in response to our written enquiries;
• Any relevant law or guidance as referred to in the text below.

8. I also sent both Mr B and the Council a draft decision statement setting out my proposed findings. I took account of any comments made in response before finalising this decision statement.

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What I found

Key facts

9. I note that Mr B has provided us with some of his life story. I do not propose to go into detail about that. But I note Mr B has overcome some difficult life experiences, including being the victim of racism in his youth, to set up his own business. This is a unique manufacturing business using high-tech equipment which has gained him recognition and some prestige.
10. Mr B has contacted the Council in various ways to try and gain financial support for his business. This included an application he made in November 2020 for a Local Restrictions Support Grant (closed) – which I will refer to as the LRSG (closed) scheme.
11. In December 2020 the Council refused Mr B the grant. It said after making checks, it had decided the business was not eligible because it “does not depend on providing direct in-person services from your premises and can operate services effectively remotely”.
12. Mr B complained about this decision. Specifically, he wanted to know what checks the Council had made of his business and what it understood about that. He also wanted it to explain how he could trade ‘remotely’. Mr B said he could not safely use his manufacturing equipment at home. He also explained that he does not have a website and so cannot rely on online orders for his work. He secures contracts for his work through personal contact with customers.
13. In February 2021 the Council sent a reply to Mr B via its complaint procedure. It told Mr B the Government did not require his business to close and so it was not eligible for the grant. It said however, Mr B may be eligible for support from an alternative discretionary grant scheme for businesses impacted by COVID-19, but not required to close.
14. Mr B later escalated his complaint and in December 2021 the Council provided its final response. It said when it refused Mr B’s business the grant it had been aware of the nature of his business. It reiterated the business did not qualify for the LRSG (closed) grant, signposting Mr B to relevant Government guidance. In the same response it went on to explain it had supported Mr B’s business through another grant scheme. This was Additional Restrictions Grant scheme (another name for the discretionary grant scheme it had referred to in February 2021). It explained the funding he received from that scheme in February and March 2021.
15. When he escalated his complaint Mr B also introduced other matters. He was unhappy with the content of two telephone calls he had with officers. One of these had referred to earlier communications Mr B had with the Council, something Mr B thought showed a pre-determined bias by the Council towards him. The other was a conversation with a Business Recovery Officer about the grant support the Council could offer to Mr B. The Council gave its account of those conversations and found no reason to criticise its officer’s conduct.
16. Mr B also suggested he wanted to make a complaint about the Council’s elected Mayor. The Council referred him to a separate complaint procedure it operates for complaints that elected members have breached a “Code of Conduct”. In his communications with this office Mr B has expressed his dissatisfaction the Mayor has not visited his business. More generally he considers that office could do more to support manufacturing businesses from his minority ethnic background.

Relevant Law, Guidance and Policy

17. The LRSG (closed) scheme ran between September 2020 and March 2021. It was a Government initiative administered by local authorities. There were four different versions of the scheme which took account that, over time, businesses became subject to different local and then national restrictions during the COVID-19 pandemic. Common to all versions of the scheme was that a business had to close by law to be eligible. Those were businesses listed in the Health Protection (Coronavirus Restrictions) (England) Regulations 2020.
18. Government guidance in support of the LRSG (closed) scheme stressed that it was to support businesses required to close. It said businesses excluded from the scheme were those able to “conduct their main service because they do not depend on providing direct in-person services from premises and can operate remotely”.
19. On its website the Council has a section dedicated to support available to businesses impacted by COVID-19. It also has a page for those wanting to “grow your business” in the Council’s area. This page provides a series of links to other bodies including the Tees Valley Combined Authority (TVCA) which supports businesses across five Teesside local authorities. The TVCA also supports Tees Valley Business and the Tees Valley Business Hub which offers advice to businesses in those authorities.
20. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
21. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. Among the protected characteristics referred to in the Act is race.

My findings

22. I begin my analysis of Mr B’s complaint by considering the Council’s decision to refuse his business a grant under the LRSG (closed) scheme. I have explained above that this scheme went through various changes between September 2020 and March 2021. However, both in November 2020 when Mr B applied, and afterwards, there was never a legal requirement for those working in the manufacturing sector Mr B operates in, to close.
23. This being the case I can find no fault in the Council’s decision to refuse Mr B’s business the grant. As while I do not doubt that COVID-19 restrictions had a significant impact on Mr B’s business and meant he could not meet with clients as before, his business was not required to close his business by law.
24. I have gone on next to consider how the Council explained its decision to Mr B and the later communications and complaint around this issue. I find the Council explained it could only pay the grant to businesses which had to close. But beyond that, I consider the Council could have been more helpful. First, in reply to Mr B’s initial query about its decision. The Council did not explain what it understood of Mr B’s business even though he asked it to.
25. Second, the Council also did not explain what it meant when it said Mr B could work ‘remotely’. I can understand why, to Mr B, this may have read like the Council was suggesting he could work from home and why he would regard this suggestion as inappropriate as he cannot work from home. However, I do not find this is what the Council meant. Instead, by considering the Government guidance quoted above we can see the term ‘remote’ refers to businesses being able to operate without having customers physically present with them. In this context it was not wrong for the Council to say Mr B could run his business ‘remotely’. But as the word was open to interpretation the Council could have explained this.
26. Some of the Council’s communications with Mr B therefore fell short of best practice. But I am not persuaded they were so poor that we could say the Council was at fault.
27. I have also considered to what extent any complaint about the application of this grant scheme might engage with the Equality Act. It is important to stress here that we cannot find that an organisation has breached the Equality Act; something which is a judgement for the courts. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
28. But I do not consider that consideration arises here. Because the qualifying rules for the LRSG (closed) were objective and not open to subjective interpretation by the Council. Either a business had to close by law because of the national restrictions, or it did not. I am satisfied the Council applied those rules properly for Mr B’s business.
29. I have gone on to consider Mr B’s wider concerns about business support. But I cannot find any grounds to investigate further.
30. I note Mr B has raised some of his past experiences with the Council. Any complaint about events before November 2020 would be late and so I could not investigate it (see paragraph 4). I appreciate Mr B is not asking us to investigate these past incidents directly but refers to them for context. As he sees it, the Council’s actions now form part of a pattern of negative behaviour towards him.
31. However, I cannot come to the view the Council is treating Mr B unfairly or with any bias at this time. Mr B’s view that it is rests on four grounds. First through telephone calls with its office. I am unable to find facts about the content of these calls. The Council has given its account of the calls and found no reason to fault the service Mr B received. While I accept Mr B may dispute its version of events I cannot find facts where accounts differ in this way. And if I cannot prefer Mr B’s account to that of the Council I cannot uphold a complaint.
32. Second, Mr B has brought to my attention that certain emails he has sent to senior officers or the Mayor’s office. He says the Council has not replied to these. I accept he will be disappointed in this. But the content of those emails is not asking the Council for any specific service or else appears to overlap concerns he has raised elsewhere. There is not enough in those emails therefore for me to consider we should pursue investigation.
33. Third, and not unrelated to the content of those emails, I recognise Mr B is unhappy with the Mayor’s office. But I find his dissatisfaction focuses on the choices of the individual holding that post about how he chooses to publicise his role. That is not an administrative action that we can investigate.
34. Fourth there is the general concern the Council is not doing enough to support manufacturing businesses run by those of Mr B’s minority ethnic background. In researching this matter, I cannot identify any grant or other support scheme for small businesses the Council is responsible for administering for which Mr B’s business may be eligible. I find much of the support available for established small businesses in the Teesside area goes through the TVCA. But this is a separate organisation to the Council with its own administration and complaint procedures.
35. None of the above is intended to dismiss Mr B’s genuine concerns about such matters. Nor do I dismiss the difficult experiences Mr B has gone through to get his business to where it is today. But there are limitations on what we can investigate.

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Final decision

36. For reasons set out above therefore I have completed my investigation finding no fault in the Council’s actions complained about.

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Investigator's decision on behalf of the Ombudsman