Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s decision to cancel a festival he had organised. This is because it was reasonable for Mr X to use the appeal rights available to him.

The complaint

1. The complainant, whom I shall call Mr X, complains about the Council’s decision to cancel a festival he had organised.

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The Ombudsman’s role and powers

2. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))

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How I considered this complaint

6. I considered Mr X’s complaint to the Ombudsman and the information he provided. I also gave Mr X the opportunity to comment on a draft statement before reaching a final decision on his complaint.

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What I found

7. In July 2020, the Government granted councils new powers to protect public health and to prevent the spread of COVID-19. The Health Protection (Coronavirus, Restrictions) (No.3) (England) Regulations allowed councils to:
• restrict access to, or close, individual premises;
• prohibit certain events (or types of event) from taking place;
• restrict access to, or close, public outdoor places (or types of outdoor public places).
8. Mr X organises an annual festival which raises money for local causes. The festival was due to take place in September 2020. On 14 August 2020, the Council issued Mr X with a ‘Direction to Prohibit’ which meant the festival could not go ahead. The Council issued this under the new powers available to it because of COVID-19. The Direction explained Mr X could appeal the Council’s decision to the Magistrates’ Court, or he could make representations to the Secretary of State.
9. Mr X is unhappy with the Council’s decision. He says it did not give enough notice, failed to consider relevant guidance, and did not consult with him as the organiser of the festival.
10. The exception at paragraph 4 applies to Mr X’s complaint. If Mr X was unhappy with the Council’s decision, then he could have appealed to the Magistrates’ Court. The Court could have considered Mr X’s arguments and given him the outcome he wanted. I see no reason Mr X could not have used this appeal right.
11. Mr X also had the opportunity to appeal to the Secretary of State. As explained in paragraph 5, when someone can appeal to a government minister, we normally expect them to use that right. As above, I see no reason Mr X could not have submitted an appeal. The Secretary of State could have revoked or amended the Council’s ‘Direction to Prohibit’ and could therefore have given Mr X the outcome he wanted. The Ombudsman does not have the power to revoke or amend a Direction to Prohibit.
12. Based on the evidence available, there is no reason Mr X could not have used the appeal rights available to him. The Ombudsman will not therefore investigate.

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Final decision

13. The Ombudsman will not investigate Mr X’s complaint. This is because it was reasonable for Mr X to use the appeal rights available to him.

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Investigator's decision on behalf of the Ombudsman