Summary: Mr X complained about the Council’s decision to award him a Restart Grant at a lower level than expected, causing distress and financial loss. We found no fault in the Council’s decision making but we found fault in its communication. We recommended the Council provide Mr X with an apology.

The complaint

1. Mr X complains about the Council’s decision to award him a Restart Grant at a lower level than due, its poor communication and its failure to provide information following a Subject Access Request. Mr X says he has suffered distress and financial loss.

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What I have investigated

2. I have investigated Mr X’s complaint above except about the provision of information. I have explained at the end of this decision why I have not investigated this matter.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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 another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
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. I spoke to Mr X and I reviewed documents provided by Mr X and the Council.
8. I gave Mr 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

Restart grants

9. In March 2021 the Government introduced the Restart Grant scheme to support businesses. It published guidance to help councils administer this scheme.
10. This grant opened from 1 April 2021 to 30 June 2021.
11. Businesses must have been trading on 1 April 2021 to be eligible.
12. Grants of up to £6,000 were payable to non-essential retail business premises.
13. Grants of up to £18,000 were payable to hospitality, accommodation, leisure, personal care and gym business premises.
14. The exact amount payable depended on the rateable value of the business.
15. If a business could be considered non-essential and also fall into another category, such as hospitality in the higher funding threshold, the council could decide on its main service by assessing which category constituted 50% or more of the overall business. The main service principle would determine which threshold of funding a business received.
16. The Government defined a non-essential retail business as one used mainly or wholly for the purposes of retail sale or hire of goods or services by the public.
17. The Government defined a hospitality business as one whose main function was to provide a venue for the consumption and sale of food and drink.

Council policy

18. The Council published a local Restart Grant policy. I note this mirrored the Government guidance.

What happened

19. The Council has provided a copy Mr X’s March 2021 application for a previous grant scheme. On this form Mr X reported he had a retail business that had to close completely from March 2020 due to the pandemic.
20. The Council has also provided an email Mr X sent to the Council in March 2021. In this Mr X explained he had a retail business but in 2019 decided to expand this to include hospitality. He planned to open this in early 2020 but then could not do so due to the pandemic. By this time the retail side of the business was very limited as he could not cover the costs of running this while also investing in the hospitality side. The hospitality side then remained closed during the pandemic.
21. In May 2021 Mr X applied for a Restart Grant as a hospitality business.
22. The Council has provided an internal email of 3 June. This shows it was trying to establish if Mr X’s business was trading and what category of business it was.
23. On 9 June the Council told Mr X it was still trying to establish his business type, to determine eligibility. It had arranged to meet him at the business on 2 June but he was unavailable.
24. The Council visited Mr X’s business on 21 June. Its notes of the visit said the retail business was still established but Mr X was seeking to diversify. He intended to set up a café but due to the pandemic had been unable to do so.
25. On 23 June the Council awarded Mr X a Restart Grant of £2667 based on the rateable value of the property. It explained that following the site visit, it classed his business as non-essential retail because the main business was retail. It noted he was fitting out a café on the site but as this was not yet open and did not have the required food licence, it could not treat this as the main business.
26. Mr X disputed the Council’s decision and asked for a review. He said he intended to open the café but was unable to do so due to the pandemic. During the site visit he confirmed he would be ready to open the café in four to five days. He received previous grants as a hospitality business. He was unhappy the Council has refused to provide information that would have helped his review request.
27. On 30 June the Council responded. It explained it awarded a previous grant on the basis his business was non essential retail. It noted he had set up a café but as this had not yet opened it could not say it was his main business. It also referred to information he provided in March. Where a business consisted of more than one type of business it based the grant on the main business, determined by the profit derived from each. He had suggested in March he received income from the retail side and it considered this was the main business conducted on 1 April 2021. Therefore, its classification of non-essential retail was correct.
28. In August Mr X complained about the Council’s decision. He also complained that during the site visit the officer told him they were there to find a reason not to pay the grant.
29. The Council replied in September. In summary that:
• The main purpose of their visit was to investigate allegations of trade waste material being burned on-site, but they were also able to report what business activities were taking place;
• The officer denied making that statement;
• It could not verify that the food business was either operational or the ‘main activity’, through its enquiries. And it received no evidence from Mr X to show this.
30. In October 2021 Mr X asked the Council for a copy of the relevant policy. The Council provided this and referred him to the Ombudsman.
31. In February 2022 Mr X asked the Council what food licence he needed as he believed he had registered with the Council in 2019 and that no further action was necessary. He also asked for a copy of the Council’s records from its site visit.
32. The Council treated this as a Subject Access Request (SAR). It said it had already sent him information under a previous SAR and given reasons why it would not provide its records.
33. In March 2022 Mr X again asked the Council what food licence he required. However, the Council said it could not answer general queries under the SAR process.
34. In response to enquiries the Council said the fact Mr X sent a food registration form in 2019 did not show he was operating a food business. It decided the food business was not operational on the relevant date and therefore it classed the main business as retail.
35. In comments on a draft decision the Council said it had addressed Mr X’s query regarding the food licence previously. It provided further documents in support. This included:
• Letters addressed to Mr X in July 2022 responding to his complaints about the risk rating assigned to his business.
• A letter to Mr X dated 16 August 2022. In this the Council explained it received his food registration form in 2019. It then sent him a questionnaire to complete however it did not receive this back and so it closed the registration.
• A letter dated 6 November 2019 asking that Mr X complete a questionnaire and if not, it would remove the business from its database.
36. In a further response the Council provided:
• An email from Mr X to the Council dated April 2022 querying the date he applied for a food licence:
• An email from the Council to Mr X dated April 2022 confirming there was no such thing as a food licence, only a food registration. It received a food registration form from him in 2019, but officers could not determine whether he was operational after attempts to contact him.
37. In comments on a draft decision Mr X said he was awaiting further information from the Council relevant to my decision. This included:
• Photos from the Council’s site visit in June 2021;
• Clarification of the Council’s reasons for refusing a grant based on his hospitality business. As he believes the Council told the police it refused as he was operating a cafe with no food licence (which did not exist), selling other products without a licence and renting his home illegally. When he questioned the Council it said this was incorrect and it did not think he deserved the grant;
• The Council’s site visit notes highlighted information impacting the decision.
38. In comments on a further draft decision Mr X said:
• The Council was wrong to refer him to the Ombudsman when we cannot reach a decision on whether he is due a higher grant payment.
• He disputes the Council’s decision.
• He thinks the Council has taken a hard line approach.
• He queries the Council’s application of the Government guidance.
• He had now received photos the Council took during its site visit. He says these show his business was a café. He describes the photos as showing animal and fish breeding equipment for his hobby, the sale of eggs and pre-orders for food.
• He has enclosed correspondence from the officers who visited the site in June 2021 that was reported back to the Council at the time. This said:
1. Mr X showed them the café business. He had spent a lot of time and money setting it up but had been unable to open due to the pandemic or financial reasons.
2. Mr X did not exactly run a pet shop but did breed animals and fish.
3. Mr X sold eggs and there was evidence you could pre-order food.
4. There was an area where Mr X said he intended as a florist and another area where his friend would sell clothes.
• He has provided notes of his recent communications with the Council.

Findings

39. Government guidance made clear a business must be trading on 1 April 2021 to qualify for a grant and the amount payable would depend on the type of business. Where a business fell into more than one category it was for a council to decide which was the main business.
40. It is up to the Council to reach a decision having regard to the Government guidance and the information available to it. I cannot reach my own decision or say the Council’s decision is wrong, where it has followed a proper decision making process.
41. The documents show the Council tried to establish whether Mr X’s business was trading and what category of business it was. The Council visited the site and took into account Mr X’s description of the business. It found a retail business on site, that income came from the retail business and, that the hospitality business was not yet open or trading. It also noted Mr X did not have the required food licence to trade. It therefore classed the main business as retail.
42. The Council was entitled to decide how to categorise the business based on the information available. And I am satisfied it reached a decision in line with the Government guidance. However, it is clear the Council erred in referring to a “food licence”. This is fault.
43. I cannot say the Council’s fault affected its decision outcome. This is because the Council had other reasons to classify the main business as retail. However, the fault caused Mr X uncertainty. This is injustice.
44. Mr X queried what food licence he needed in February 2022 as this was relevant to the Council’s decision and as he believed he had completed all necessary paperwork. However, the Council did not address this query. This is fault. While the Council could refuse to address this under the SAR process, it could and should nonetheless have addressed this under the complaints process. Mr X asked again in March. Only in April, in response to a separate query, did the Council confirm there was no such licence. Mr X suffered avoidable uncertainty until this was addressed. This is injustice.
45. Where it is one person’s word against another, it is often not possible to reach a finding as to what happened. There is a lack of evidence for me to find, even on balance, that an officer said anything inappropriate to Mr X during the site visit. I therefore cannot find fault in this regard.
46. I considered I had enough information to reach a decision without requesting or awaiting the further information referenced by Mr X. This is because I had already seen adequate records of the Council’s decision making to reach findings on a balance of probabilities. Any inconsistency in explanations the Council may have provided to third parties or Mr X would not impact my view on its decision making as recorded at the time.
47. I have since reviewed the further evidence provided by Mr X. I consider this supports the Council’s finding that the cafe was not yet open or trading. And this is consistent with the Council’s reasoning that hospitality was not the main function of the business. While Mr X disagrees with the Council’s view I cannot say it was right or wrong.
48. We expect councils to refer complainants to the Ombudsman after they have provided a final response. We do not expect councils to give information about our remit or powers.
49. I cannot comment on any recent communications or matters arising between Mr X and the Council. This is because these were not the subject of my investigation and we cannot investigate ongoing matters. Mr X would need to complete the Council’s complaints process regarding any further issues before contacting the Ombudsman.

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Agreed action

50. To remedy the injustice above the Council should carry out the following actions within one month of my decision:
• Provide Mr X with an apology for the faults identified in paragraphs 42 and 44.
51. The Council has accepted my recommendations.

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Final decision

52. I found no fault in the Council’s decision on a Restart Grant but I found fault in its communications. The Council has accepted my recommendation and I have completed my investigation.

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Parts of the complaint that I did not investigate

53. I did not investigate Mr X’s complaint about the Council’s response to a Subject Access Request. This is because the Information Commissioner’s Office is the appropriate body to consider such complaints.

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Investigator's decision on behalf of the Ombudsman