Summary: Mr X complained the Council wrongly refused him a business grant causing financial loss. We found no fault in the Council’s decision making.

The complaint

1. Mr X complains the Council wrongly refused him a business grant, causing financial loss, distress and wasted time.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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 spoke to Mr X and I reviewed documents provided by Mr X and the Council.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Omicron grant

7. In December 2021 the Government introduced the Omicron Hospitality and Leisure Grant to support businesses. It published guidance for councils administering the grant.

8. Grants of up to £6,000 were payable to hospitality, leisure and accommodation businesses.
9. The guidance defined a leisure business as one that provided opportunities, experiences and facilities, in particular for culture, recreation, entertainment, celebratory events and days and nights out. It excluded all retail businesses.
10. Councils could use the following criteria to assess whether a business was eligible for a grant under this threshold:
• Businesses that may provide in-person intangible experiences in addition to goods.
• Businesses that may rely on seasonal labour.
• Businesses that may assume particular public safety responsibilities.
• Businesses that may operate with irregular hours through day, night and weekends.
11. The guidance also listed businesses that fell into scope. This included casinos and gambling clubs.
12. The list was indicative but not exhaustive. Councils had to use their local knowledge and the definitions and criteria set out to in the guidance to assist in deciding on the eligibility of a business.
13. Alongside this list, the guidance further defined leisure as a business that provides opportunities, experiences and facilities, in particular for culture, recreation, entertainment, celebratory events, days and nights out, betting and gaming.

What happened

14. I have reviewed correspondence exchanged between the Council and Mr X. This was extensive and many points were raised repeatedly. I have only referred to key information below.
15. Mr X applied for an Omicron grant for his betting shop as a leisure business.
16. The Council replied that the Government considered betting shops to be non-essential retail as defined in a previous grant scheme. It therefore could not consider it to be a leisure business and so refused the grant.
17. Mr X said his business was not retail. It provided an intangible, opportunity, experience and recreational entertainment service. It previously received grants as a hospitality and leisure business. And other councils paid the grant to betting shops.
18. The Council explained the guidance included casinos and gambling clubs as leisure businesses, but not betting shops. Under previous grant schemes, betting shops were “non-essential retail” and he received grants based on that view, not that his business was hospitality or leisure. It was not relevant what other councils were doing, as they were considering the premises in their area.
19. Mr X and the Council exchanged further correspondence. The Council added that other councils may have taken a view that “betting and gaming” should include betting shops. However, it considered this ignored the other definition and criteria within the guidance which did not include betting and gaming. The Council felt this was added because casinos, gaming clubs and amusement arcades were examples of included businesses.
20. Mr X asked how to appeal. The Council said there was no right to appeal but it would ask the Government for its view.
21. Mr X also contacted the Government. It told him it was for councils to decide with reference to the guidance. Mr X then highlighted to the Council parts of the guidance that supported his view that he owned a leisure business.
22. The Council pointed to Government guidance on retail rates relief which included betting shops as retail whereas casinos and gambling clubs were leisure. And Government guidance on the restart grant where betting shops were retail. It said it wanted to maintain consistency in classifying betting shops as retail.
23. Mr X said other schemes were not relevant.
24. The Council then received advice from the Government. It said the Council’s approach in categorising a betting shop as a retail business and therefore not eligible would be a correct application of its scheme unless the applicant could evidence it was not primarily a retailer but in fact their main service provided a leisure opportunity. If, after assessing any evidence, it was not materially clear to the Council which was the primary service a decision on eligibility was at the Council’s discretion. In the absence of a changed business model, if a business had previously received a retail specific grant under an earlier scheme the Council may consider that good evidence they were not eligible for a grant supporting only hospitality, leisure or accommodation businesses.
25. The Council provided a further response to Mr X. It said betting shops were retail businesses, providing services for payment. They were not on the list of those businesses eligible. The Government had always considered betting shops as retail as per other schemes. The Council’s decision was in line with the guidance and its interpretation was the same as many other councils.
26. Mr X disagreed and contacted the Ombudsman.

Findings

27. It is not within my remit to reach my own decision on whether Mr X is entitled to a grant. Rather I must review the Council’s own decision making. If there was no fault in how the Council reached its decision I cannot question the decision outcome.
28. It was up to each council to decide on a business’ eligibility for a grant having regard to the Government guidance. Decisions reached by other councils have no bearing on whether the Council in this case followed a proper decision making process.
29. The Council had regard to the Government guidance as referred in the correspondence. It was aware the guidance included betting and gaming as leisure businesses but it did not consider this included betting shops. Rather, it considered the guidance excluded betting shops as retail businesses. In reaching this view it noted the Government had made this distinction on previous grant schemes and defined betting shops as retail businesses. It also took into account advice from the Government that supported its position. I appreciate Mr X disagrees with the Council’s view. However, the Council was entitled to make this distinction and to interpret and apply the guidance as it saw fit. I find no fault in the Council’s decision making process.
30. I recognise there was a lot of back and forth between Mr X and the Council as both continued to argue their positions. It would have been good practice for the Council to provide a shorter and more structured process for reviews to reduce the time spent, however this does not amount to fault.

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Final decision

31. I find no fault in the Council’s decision to refuse Mr X a business grant and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman