Summary: Ms C complains about the actions of the Council associated with her application for a review of licenses for two bars near to her home. The Ombudsman has not investigated this complaint because it would have been reasonable for Ms C to have appealed to the Magistrate’s Court.

The complaint

1. The complainant, whom I shall call Ms C, complains about the actions of the Council associated with her application for review of licences for two bars near to her home in August 2019, which she sought after experiencing anti-social behaviour over a period of two years. She is also concerned about the way in which the Council responded to her concerns after the review hearing.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe there is another body better placed to consider this complaint (Local Government Act 1974, section 24A(6), as amended)
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

5. I considered all the information submitted by Ms C about her complaint, and information available on the Council’s website about the meeting of its licensing sub-committee which considered Ms C’s applications.
6. I provided Ms C and the Council with a draft of this decision and took account of comments received in response.

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What I found

Background

7. Ms C lives in a residential area close to a large number of bars and other licensed premises. For two years she and other local residents experienced anti-social behaviour in the area associated with the various licenced premises. This has included noise, fighting, litter, and such behaviour as public urination and vomiting. Ms C gathered evidence to support her complaints about this and submitted it to the Council. She reports that the licensing team advised that the process to address repeated breaches of licensing conditions was a formal review, but that it refused to seek such a review itself. Ms C therefore made her own application for a review of two of the licensed premises which are in the street where she lives.

The licensing review

8. On the day before the Council’s licensing sub-committee considered the review applications, Ms C asked the Council to confirm it had all the evidence she submitted: she reports that she was told it did. However, at the hearing the next day, Ms C found that only a small percentage of the evidence she had submitted had been included in the submission prepared for the hearing by the licensing team. Ms C considers that only evidence referencing less significant breaches was presented and that this limited evidence enabled the legal representative for the licensees to argue more successfully that the breaches referred to were one-off or less serious incidents.
9. Having heard from all parties, the sub-committee resolved that additional conditions should be added to the licenses for the premises, the principal one being that the license holders should employ a street marshall tasked with patrolling the area with a view to preventing anti-social behavior and noise nuisance from patrons. For other aspects of the operation of the premises such as outdoor drinking, no new conditions were imposed.
10. Ms C was dissatisfied with this outcome. She feels the Council did not properly address the breaches of the four licensing conditions (public safety and the prevention of crime and disorder, of public nuisance, and of harm to children) for which she had been gathering and submitting evidence to the Council.
11. Ms C complained to the Council after the licensing sub-committee hearing and reports she was then given contradictory responses about why only a percentage of the evidence she had submitted had been available at the review hearing.

Legal and administrative information

12. The Licensing Act 2003 says a review applicant can appeal against the review decision within 21 days of the date they are notified of the decision. The Council's notice of decision set out the applicant’s right to appeal against the decision to the Magistrates Court.

Analysis

13. As noted above, licensing decisions are appealable to the Magistrate’s Court. Where there is a specific statutory right to appeal against the council’s actions, the Ombudsman will not usually exercise discretion to investigate.
14. Ms C was at the hearing and was aware of her right of appeal. She did not exercise that right. As Ms C applied for the review of the licence, and the law specifically gives review applicants a right of appeal against a decision they are unhappy with, it was reasonable to expect her to use the appeal right the law provides.
15. The court has powers, which the Ombudsman does not have, to overturn a licensing decision. Ms C could have presented the court with her objections to the licences and associated conditions, and raised in court any issue she had about the evidence the Council put forward. It would then have been for the court to decide if it had enough evidence to decide the appeal.
16. Ms C has concerns that the costs of appeal would have been prohibitive, but the Magistrates' Association and the Justices' Clerks Society have said that awarding costs for a licensing appeal should be an exception, not a rule, and any resident with reasonable grounds for an appeal should not be penalised.
17. While there are parts of Ms C’s complaint which specifically concern the actions of the Council in the way it dealt with the evidence she submitted and the responses it gave to her complaints about that, the principal injustice to Ms C arises from the decision of the sub-committee in respect of the licenses for the premises, and, for this, Ms C had the right of appeal provided in law as noted above. Any remaining matters do not, in themselves, give rise to a significant injustice which would warrant investigation by the Ombudsman.
18. In the interests of completeness, I note that Ms C was able to speak at the sub-committee hearing and express concerns at that time about the limited nature of the evidence being put forward. Taking account of the representations made, it was a matter for the Members to decide if they had sufficient information on which to make a decision on the application, or to seek further information or evidence if they thought it appropriate.

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Final decision

19. I have not investigated this complaint, for the reasons set out above.

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Investigator's decision on behalf of the Ombudsman