Summary: There was no fault in how the Council considered a sports club’s application to the Omicron Hospitality and Leisure Grant scheme. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Ms H.
2. Ms H represents a sports club. She complains the Council refused the club’s application for a COVID-19 business support grant.

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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. 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

5. I considered Ms H’s correspondence with the Council, and the Omicron Hospitality and Leisure Grant scheme guidance.
6. I also shared a draft copy of this decision with each party for their comments.

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What I found

7. Ms H represents a sports club. During the COVID-19 pandemic, the club successfully applied to the Council for several mandatory and discretionary business support grants.
8. In early 2022, the club applied to the Council for a grant under the newly announced ‘Omicron Hospitality and Leisure Grant’ scheme. This scheme was intended to provide support to businesses which were likely to face difficulties because of the new Omicron variant of COVID-19.
9. However, on this occasion the Council refused the club’s application. In discussion with Ms H, it explained this was because (unlike previous schemes) the Omicron scheme specifically excluded sports clubs from its ‘leisure’ category.
10. Aware the club also had a hospitality function, the Council invited Ms H to submit evidence to allow it to assess the club’s possibility eligibility under this strand of the Omicron scheme instead. Ms H responded by providing copies of several temporary event notices the club had submitted to the Council previously, to allow it to hold events.
11. The Council considered this evidence, but determined it did not show the club’s business was at least 50% hospitality, which would allow it to categorise it this way. The Council therefore maintained its refusal of the application.
12. Ms H then referred her complaint to the Ombudsman.

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Legislative background

Omicron Hospitality and Leisure Grant

13. Since the beginning of the COVID-19 pandemic, the Government has provided funding to support businesses which have been forced to close, or have faced a significant loss of income, because of lockdown restrictions. In some cases, the Government has created specific schemes, with accompanying guidance, and asked councils to administer them for their respective areas (‘mandatory schemes’); in other cases, the Government has provided funding for councils to set up and run their own schemes as they see fit (‘discretionary schemes’).
14. One of the original mandatory schemes was for qualifying retail, hospitality and leisure (RHL) businesses. The Government guidance explained the types of businesses which would be eligible to apply for a grant, which included “sports clubs”.
15. In January 2022, the Government set up a new mandatory scheme to support hospitality and leisure businesses affected by the Omicron variant of COVID-19. In setting out the eligibility criteria for the scheme, the Government’s guidance said (at paragraph 22):

“Businesses will only be eligible where their main service falls within hospitality, leisure or accommodation. If a business operates services that could be considered hospitality or leisure, and also fall into another category, the main service can be determined by assessing which category constitutes 50% or more of their overall income. The main service principle will determine whether a business receives funding. Businesses will need to declare which is their main service. Local Authorities will need to exercise their reasonable judgement to determine whether or not a business is eligible for grants and be satisfied that they have taken reasonable and practicable steps to pay eligible businesses.”

16. And, at paragraph 34, it says:

“For these purposes, the definition of a leisure business should exclude: all retail businesses, coach tour operators, tour operators, and gyms and sports businesses where physical exercise or training is conducted on an individual basis or group basis.”

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Analysis

17. The Ombudsman’s role is to review how councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, failed to take into account relevant information, or not explained its decision properly. We call this ‘fault’, and if we find it, we can consider what impact it may have had on the outcome.
18. However, we do not provide a route of appeal against council decisions. We cannot reconsider or overturn them, we cannot decide what policies a council should have, and we cannot direct a council to disregard its own professional judgement, simply because somebody disagrees with it. If we do not find fault, we cannot criticise a council decision.
19. In this case, the Council has explained it could not approve the club’s application under the ‘leisure’ strand of the Omicron scheme. This is because, as a sports club, the Government guidance specifically excludes it from the scheme.
20. I do not consider there is any ambiguity in the guidance on this point. I am satisfied the Council has correctly considered this, and there is no question of fault here.
21. I am conscious the Omicron scheme differs from previous schemes, which specifically included sports clubs, and I accept this may cause Ms H and other club members some frustration. However, as this is a mandatory scheme, the Council is only responsible for administering the scheme; it is not responsible for the guidance, and so it is not for the Council to explain the intent behind the exclusion of sports clubs.
22. The Council then invited Ms H to provide evidence of the club’s income from hospitality, to allow it to reconsider the application under this strand. However, the Council refused the application again, when it saw the club’s income from hospitality was less than 50% of its total income. It explained to Ms H it could not, therefore, consider the club to be primarily a hospitality business.
23. Again, I am satisfied the Council has properly applied the guidance here. The ‘50%’ approach is specifically set out in the Government guidance, and so it is not fault for the Council to refuse the application on this basis.
24. In addition, the Council has explained it accepted the club’s applications for previous grant schemes on the basis it was a leisure business. I also note, in her complaint to the Ombudsman, Ms H refers to the club as a leisure business. It is therefore entirely consistent for the Council to maintain this classification with respect to the Omicron grant scheme.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman