Summary: We will not investigate Mr X’s complaint about the Council’s issue of a prohibition notice for an alleged breach of The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020. This is because it is unlikely we would find fault by the Council and we cannot achieve the outcome Mr X wants.

The complaint

1. The complainant, Mr X, complains about the Council’s investigation into an alleged breach of COVID-19 guidelines at his business premises. He believes council officers are biased against him and says he has lost respect for and faith in the local authority to deal with matters impartially.

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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. 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:

• it is unlikely we would find fault, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

4. We cannot question whether a council’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)

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How I considered this complaint

5. I reviewed Mr X’s complaint and the Council’s response. I shared my draft decision with Mr X and invited his comments.

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What I found

Legislative background

6. The Government introduced The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 in November 2020 to help reduce the spread of COVID-19. Regulation 15(1) stated:

“A person responsible for carrying on a restricted business, or providing a restricted service, must—

1. close any premises, or part of the premises, in which food and drink and provided for consumption on those premises, and
2. cease providing food or drink for consumption on its premises.”

7. Regulation 15(1) is subject to exceptions set out in Regulation 17(1) and (2). These exceptions allow the sale of food or non-alcoholic beverages for consumption off the premises between 5am and 10pm, or food and/or alcohol sold in advance through a website, over the phone or by post for delivery or collection from the premises.
8. Regulation 16(1) states:

“A person responsible for carrying on a restricted business, or providing a restricted service, must cease to carry on that business or provide that service.”

9. Regulation 16(1) is subject to exceptions set out in Regulation 17(6). These exceptions allow certain premises to be used for various purposes including to host blood donation sessions, to make a film, television or audio programme or audio-visual advertisement, for training by elite sportspersons, for use by professional dancers and choreographers, and for supervised activities for children.
10. Where the owner of a premises does not comply with the regulations, Regulation 19 allows for enforcement:

“(2) A relevant person may give a prohibition notice to a person if the relevant person reasonably believes that—

(a)the person is contravening a restriction or requirement imposed by regulation 15, 16 or 18, and

(b)it is necessary and proportionate to give the prohibition notice for the purpose of preventing that person from continuing to contravene the restriction or requirement.”

Mr X’s case

11. In November 2020 the Council became aware Mr X was using his premises for an activity it considered contravened the regulations. It investigated and issued Mr X a prohibition notice. Mr X disagrees with the Council’s decision to issue a prohibition notice and disputes that his activity breached the regulations. He also argues the exceptions set out at Regulation 17(6) (and Paragraph 10 above) would apply. He says this is further evidence of harassment by the Council in an “ongoing saga” by the Council against him and his business. He would like several council employees to resign from their positions immediately.
12. The Council’s prohibition notice alleges a breach of Regulation 15(1) in the activity carried out at Mr X's premises. The exceptions at Regulation 17(6) do not therefore apply. The relevant exceptions in this case are those set out at Regulation 17(1) and (2) and they are not applicable to the activity concerned.
13. The regulations convey a broad power to the Council to issue a prohibition notice where it “reasonably believes” there has been a breach of the regulations and that it is necessary and proportionate to issue a prohibition notice. I have seen nothing to suggest the Council failed to meet this requirement and without evidence of fault we cannot question the ‘merits’ of its decision to issue the prohibition notice. It also properly considered Mr X’s challenge to the notice and explained the reasons it would not withdraw it. However, even if we were to investigate we could not achieve the outcome Mr X wants; this is because we consider the actions of local authorities as corporate bodies and we cannot recommend employees resign.

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Final decision

14. We will not investigate this complaint. This is because it is unlikely we would find fault by the Council and we cannot achieve the outcome Mr X wants.

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Investigator's decision on behalf of the Ombudsman