Summary: We shall not investigate this complaint about the Council not closing a coffee shop because of alleged COVID-19 breaches. The Council’s alleged fault has not disadvantaged Mr X directly and significantly enough to warrant investigation.

The complaint

1. Mr X complains the Council has not closed a coffee shop near his home. He says this puts him and the local community generally at increased risk of COVID-19 spreading from the coffee shop’s customers not following COVID-19 restrictions.

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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:

• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

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

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How I considered this complaint

4. I considered the information Mr X provided, copy complaint correspondence the Council supplied, and the relevant law and government guidance. I gave Mr X the opportunity to comment on my draft decision.

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What I found

5. Mr X lives near a coffee shop. During the time complained of, tier 4 restrictions and then a national lockdown affected the area. Those restrictions allowed the coffee shop to sell takeaway but prohibited people gathering in groups. Mr X says nevertheless the coffee shop’s customers congregated in groups outside the coffee shop and on nearby street corners, without masks or social distancing, sometimes spitting on the pavement.
6. Mr X, who works in healthcare and had colleagues who died of COVID-19, says the gatherings increased the risk of COVID-19 spreading, which he worries about for himself, for others locally, and for the general spread of infection. At the time of his complaint to the Council in December 2020, Mr X pointed out more infectious variants of COVID-19 were spreading and it would be some months before vaccination had a real impact.
7. The police, not the Council, have powers to enforce against breaches of the COVID-19 restrictions by members of the public gathering and breaching social distancing rules. Council officers can only ask anyone wrongly gathering there to move on. The Council says it visited and did that. Mr X argues the Council did not visit enough at the relevant times. Mr X believes the Council should close the coffee shop. The Council has limited powers to close or restrict access to premises for public health reasons.
8. As paragraph 3 explained, we do not necessarily investigate every allegation that a Council is at fault. We will normally only investigate where the alleged fault has caused the person complaining a significant enough injustice to warrant the Ombudsman devoting time and public money to investigation. It is not the Ombudsman’s role to oversee or police councils’ activities generally. Therefore I have considered how the Council not closing the coffee shop affects Mr X.
9. There is no suggestion Mr X caught COVID-19. Even if he unfortunately were to catch it, we could not assume with any confidence the infection came from people near the coffee shop rather than another source. I note Mr X need not be in the gatherings of people near the coffee shop for long periods; he only has to walk past. It is generally accepted infection is less likely outdoors than indoors. So I am not persuaded the Council not closing the coffee shop directly links to any significantly increased risk to Mr X himself.
10. Mr X’s fears about the coffee shop’s customers infecting each other and other people and increasing the COVID-19 rate are speculative. They do not amount to a significant enough injustice to Mr X for usto investigate.
11. It is also relevant that the main issue here is people gathering around the coffee shop, not inside it. The police, not the Council, have enforcement powers to deal with people breaching COVID-19 restrictions in the street. Mr X says the police cannot deal sufficiently with the problem. That is not the Council’s fault. The Council does not have enforcement powers to deal directly with people breaching COVID-19 restrictions outside the coffee shop.
12. Even if the above points did not apply, I have to consider what an investigation might achieve. If we were to investigate and find fault in a case such as this, it is unlikely we would do more than recommend the Council reconsider its site visiting arrangements and/or reconsider whether to use its powers to control the premises. However, since Mr X complained to the Council, the situation with COVID-19 has changed, with widespread vaccination of more vulnerable people and the government signalling its intent to ease restrictions. By the time we had investigated, it is likely matters would have moved on further, so the possible recommendations I mentioned would be unlikely still to be relevant. For this reason also, an investigation would be disproportionate.
13. I do appreciate Mr X is very concerned about the events he describes. However, for the above reasons, we shall not investigate Mr X’s complaint.

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Final decision

14. We shall not investigate this complaint. This is because the Council’s alleged fault has not caused Mr X a significant enough direct injustice.

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Investigator's decision on behalf of the Ombudsman