Summary: We will not investigate Mr X’s complaint about a fixed penalty notice he received from the Council for opening his shop during a lockdown due to the COVID-19 pandemic. It is for the courts to decide if an offence has taken place.

The complaint

1. The complainant, I shall call Mr X, complains the Council issued him a Fixed Penalty Notice (FPN) for opening his shop during a lockdown due to the COVID-19 pandemic. He also complains the Officer was not wearing ID
2. He says he has lost income.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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

4. I have considered the information provided by Mr X and the Council.

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What I found

5. Mr X owns a hardware shop. In January 2021, a Council Officer visited the shop. The Council says he was wearing an identification (ID) badge and introduced himself to Mr X’s son who was in the shop. It says the Officer explained the COVID Regulations had changed and stores which had previously could open, could now not do so, but they could trade on a click and collect basis. The Officer concluded the shop was a homeware/hardware store. He advised Mr X’s son that he would talk to his manager about the potential for serving a Prohibition Notice.
6. Following discussions with his manager, the Officer returned to the shop a few days later and issued a Prohibition Notice, as the shop remained open. Again, the Council says the Officer wearing his ID badge During this visit the Officer was verbally abused by a customer. Also, he says Mr X and his wife confirmed they would not close. Fearing the situation would escalate, the Officer gave Mr X the Prohibition Notice and left the shop.
7. A couple of days after the Prohibition Notice was served, the Officer witnessed Mr X still allowing customers into the shop. The Officer served Mr X an FPN.
8. Mr X contacted the Council, appealing against the FPN, saying he could open because his shop was a hardware store.
9. The Council wrote to Mr X. It confirmed there is no right of appeal against the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020. It told Mr X if he chose not to pay the fine it would prosecute him for non-payment.
10. It also advised Mr X the Regulations had changed (as previously explained verbally to him and his son) and hardware stores had been removed from the closed of business which could remain open. It confirmed Mr X’s shop must remain closed and trade using clock and collect and/or delivery.
11. Mr X paid the FPN.

Assessment

12. We do not intend to investigate Mr X’s complaint that the Council was wrong to issue the FPN.
13. Neither the Council nor the Ombudsman can consider a complaint about whether the FPN should have been issued because Mr X has already paid the fine. If Mr X believes he should not have received the FPN he could have chosen not to pay it. The Council may then have prosecuted him for non-payment. He would then have had a right of defence in the magistrates’ court, and he could have presented his evidence as to why he should not have been given the FPN to the Court.
14. The Court was in the best position to consider the evidence from both parties and to decide whether the FPN should have been issued. But by paying the fine Mr X has lost that right.
15. Also, investigation of Mr X’s complaints that the Council Officer did not wear ID is unlikely to lead to a different outcome. While Mr X says the Officer did not identify himself, the Council says the Officer was wearing his ID badge and introduced himself. I cannot confirm which is correct.
16. However, it remains that Mr X has received 2 visits from the Council before he received the FPN. He was also given a Prohibition Notice during one of these visits which explained why he could not open his shop but could trade as click and collect or delivery.
17. There is no statutory right of appeal against the FPN, but the Notice did included information about contacting the Council with any queries.

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Final Decision

18. Subject to any comments Mr X might make, my view is we should not investigate this complaint. This is because:
• we cannot determine whether the offence took place, this is a matter for the court. However, by paying the FPN Mr X has lost the right to challenge this in court.
• it is unlikely that an investigation on whether the Officer was wearing ID is unlikely to lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman