Uttlesford District Council (21 008 290)

Category : Environment and regulation > COVID-19

Decision : Upheld

Decision date : 03 Feb 2022

The Ombudsman's final decision:

Summary: We found fault with the way the Council handled Mr C’s temporary event notice and the advice it gave about his party. The Council agreed actions to remedy the injustice to Mr C.

The complaint

  1. Mr C complained about the Council’s handling of his temporary event notice (TEN) and the advice it gave him about a party he organised. He complained the Council:
    • failed to give the correct information and advice about the party
    • misled Mr C about whether he could hold the party.
  2. He said the Council’s actions meant the party plans were changed at the last minute which caused him financial loss and significant distress.

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The Ombudsman’s role and powers

  1. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  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 a council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
  3. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  4. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the police. (Local Government Act 1974, sections 25 and 34A, as amended)
  5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I spoke to Mr C and considered the information he provided with his complaint. We made enquiries with the Council and considered its response along with relevant law and guidance.
  2. Mr C and the Council had the opportunity to comment on my draft decision. I carefully considered the comments I received before making my final decision.

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What I found

Law and guidance

The Licensing Act 2003

  1. All businesses and event holders must obtain a licence before they can sell alcohol to the public. The Act sets out the separate types of licence required.
  2. Anyone who plans to sell or supply alcohol on a temporary basis must submit a temporary event notice.
  3. Schedule one of the Act sets out what activities are regulated entertainment and when they are licensable. Entertainment activities licensable under the Act include any playing of recorded music.
  4. To be licensable the activity needs to be provided for the purpose (at least partly) of entertaining an audience and be held on premises made available for the purpose of enabling the activity.
  5. It must also either:
    • take place in the presence of a public audience; or
    • where the activity takes place in private, be subject of a charge made with a view to profit.
  6. The Act says that events held in private are not licensable unless those attending are charged for the entertainment with a view to making a profit.

Temporary event notices (TEN)

  1. A temporary event notice (TEN) authorises licensable activities to take place on a short-term basis.
  2. Licensable activities include the following:
    • sale by retail of alcohol.
    • serving alcohol to members of a private club.
    • any playing of recorded music.
    • any entertainment of a similar description to that falling within the performance of live music, the playing of recorded music and dancing.
  3. A council cannot refuse a notice unless the police or the council’s environmental health department object to it. They must do this within three working days of receiving it. They can only object if they think the event could:
    • lead to crime and disorder.
    • cause a public nuisance.
    • be a threat to public safety.
    • put children at risk of harm.
  4. The police or environmental health (as a ‘relevant person’) may contact the premises user to discuss their objections and try to come to an agreement which would allow the proposed licensable activities to proceed.

The Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021

  1. The regulations came into force from 29 March 2021. They set out the steps the government intended to take to ease restrictions in place in response to the COVID-19 pandemic which were called the ‘roadmap’ out of the third lockdown.
  2. The regulations defined a gathering as:
    • two or more persons present together in the same place in order:
    • to engage in any form of social interaction with each other, or
    • to undertake any other activity with each other
  3. From 17 May 2021 to 18 July 2021 the government moved to step three of its national lockdown restrictions which said that no person could hold a relevant outdoor gathering if it consisted of more than 30 people in a private dwelling (Schedule 3, Part 1). A private dwelling includes any garden, yard, passage, stair or outhouse.

What happened

  1. What follows is a brief chronology; it does not contain all the information I reviewed during my investigation.
  2. On 15 June 2021 Mr C submitted a TEN form to the Council for a party he intended to hold on the 10 and 11 July 2021. The form said:
    • the party would be held outside on private land.
    • it was a private, not for profit event for Mr C’s birthday.
    • there would be a maximum of 200 guests.
    • some guests would camp on the land.
  3. Mr C listed the licensable activities as:
    • the supply of alcohol by or on behalf of a club to a member of a club.
    • the provision of regulated entertainment (playing recorded music).
  4. Mr C sent a copy of the form to the police and environmental health. He also submitted a COVID-19 risk assessment, as required by the Council.
  5. There were no formal objections from the police or environmental health within three working days of the application so the TEN was approved.
  6. On 30 June 2021 a council officer, Officer A, contacted Mr C. They asked him to consider additional measures to reduce COVID-19 risks.
  7. On 1 July 2021 Officer A emailed the police about the party. They told the police they had concerns about COVID-19 risks.
  8. On the same day an officer from the Council’s environmental health COVID-19 team emailed Officer A. They said no more than 30 people could attend the party because it was held at a private dwelling. The officer repeated their concerns to Officer A on 7 July. They said:

“They are not allowed more than 30 people, they cannot have 200 people, the police will give a fine”.

  1. They also included the relevant section from the regulations on gatherings.
  2. Officer A spoke to Mr C on 7 July and followed this up with an email on 8 July. He told Mr C:
    • step three restrictions were still in place and these placed limits on events.
    • gatherings of family and friends outside were limited to a maximum of 30 people.
    • to review his plans as a matter of urgency and included a link to the COVID-19 restrictions.
    • the police had enforcement powers and could take action, including a fine, if there were any breaches.
    • they would share any amended plans with the police.
    • if he could not achieve compliance, he might wish to postpone his event until after 19 July, when the regulations were due to change.
    • he should monitor the government guidelines closely because it could change quickly, and no date was guaranteed.
    • if the event was not COVID-19 compliant it could be referred to the Director of Public Health. They could take action to stop the event taking place.
  3. Mr C replied the same day. He listed the changes he made based on Officer A’s advice. He also said he would split the party into groups of 30 people or less.
  4. The Council updated the police about its correspondence with Mr C and the advice it had given.
  5. Over the weekend of the party, from 9 to 11 July, there was ongoing correspondence between the police and Mr C. The police also attended the party address several times. The party did go ahead but was split over four different sites with groups of 30 people or less.
  6. The question of whether a TEN was ever required was discussed internally between the Council’s environmental health, licensing and legal department between 16 and 21 July. It decided the TEN was not needed for the party.
  7. Mr C complained to the Council on 14 July. The Council responded on 21 July. Mr C remained unhappy with its response and asked for his complaint to be reviewed. The Council provided its final response on 5 August. It said:
    • there was no formal process to confirm whether his party was Coronavirus Act and Regulation compliant. The onus was on Mr C to “seek independent professional advice or contact the authorities so that question can be put directly to them”.
    • it did not know why the illegality of the party was not identified at the time of the TEN application. It assumed the focus was on the licensing objectives and compliance with the COVID-19 regulations were not seen as a material licensing consideration. One of the licensing objectives is public safety and so it should have been considered.
    • it sympathised with Mr C’s situation. It was unfortunate the question of the legality of his party was not picked up by the TEN procedure or during earlier communications with Officer A.
    • it was common knowledge that COVID-19 restrictions were in place until 19 July and the guidance was very easily obtainable. Mr C could have sought independent advice.
    • the Council was not responsible for Mr C’s decision to continue with the event. It was also not responsible for any police action.
  8. Mr C remained unhappy with the Council’s response and complained to the Ombudsman.

My findings

  1. I found fault with the Council for the way it handled Mr C’s TEN application. I also found fault with the way the Council communicated with Mr C about his party.
  2. Once the TEN form was submitted the Council followed the TEN process. No formal representations were received from the police or environmental health so the TEN was effectively automatically approved.
  3. Mr C took the approval as confirmation his party could go ahead. Having read the emails and listened to the calls I can understand why Mr C felt his party could go ahead from both a licensing and COVID-19 compliance perspective.
  4. Although there were no formal objections received within the three-day timeframe the police licensing team did send the Council an email on 16 June after it received the TEN form. The email said:

“We do not have any objections to the below TEN from a Policing perspective, although I do not believe the event will be allowed to take place under current Covid guidelines as the event is for a… birthday party and not for a wedding”.

  1. The Council missed this email and it was not followed up. This was the first opportunity the Council had to check the party was likely to be legally allowed within the COVID-19 regulations at that time.
  2. The Council missed another opportunity on 1 July when an officer from the Council’s environmental health COVID team raised similar concerns.
  3. The Council should have told Mr C the party was likely to be unlawful under COVID-19 restrictions as soon as it became aware. It missed the opportunity to give him clear, timely advice when he made the TEN application.
  4. It was not until the evening of 7 July that Officer A spoke to Mr C and told him he could not go ahead with the party as planned. He told Mr C he could not have a gathering of more than 30 people outside.
  5. At this point Mr C was aware the party could not take place as he had planned. He knew the guests would have to split into smaller groups of 30 people or less. However, the Council failed to explain its change of advice and that the TEN was not needed. I can understand why Mr C found the Council’s communication confusing and conflicting.
  6. But, after the contact with Officer A on 7 July it was clear that if Mr C decided to go ahead with the party it would not be as he originally planned and would carry some risk.
  7. On the morning of the party Mr C emailed the police. He said:

“Single event will be cancelled. 4 events will take place on four locations/properties as detailed below”.

  1. Mr C pointed out in his complaint to the Council that he complied with all the advice and recommendations it made in the lead up to the party. He also repeatedly checked the TEN had been properly completed. When he did not hear back from the police or environmental health, he asked the Council to confirm there were no objections. In an email and call on 22 June the Council told Mr C:

“...If you haven’t heard from the police or environmental health, you’re home and dry. Hope you have a lovely time!”

and

“...I spoke to the police at length… no objections… no issue whatsoever. You can relax. Have a lovely party”.

  1. I can understand why Mr C was unhappy with the Council’s complaint response when it told him the onus was on him to “seek independent professional advice or contact the authorities so that question can be put directly to them”. That was exactly what Mr C was doing when he submitted the TEN form. The Council appears to acknowledge this in its complaint response:

“… while an application was not formally required for your private party, I do recognise that a responsible decision may have been taken to err on the side of caution by submitting”.

  1. The Council also recognised the contact with Officer A caused confusion.

Injustice

  1. I found fault with the Council. The next question I considered was whether the fault caused Mr C an injustice.
  2. Mr C said the Council’s actions placed him in a situation where he had no choice but to continue with the party but with significant changes. He said because the Council gave him such short notice, he already incurred significant costs and would have lost even more money if the party was completely cancelled.
  3. Mr C said he was also placed in a difficult situation because many of the guests had booked travel and accommodation for the party.
  4. Mr C said the injustice was financial. Both in terms of the costs associated with the party itself but also the amount of time he spent organising it over many months.
  5. He also said the last-minute issues and changes caused him significant distress that could have been avoided.
  6. I had several concerns about what injustice could be directly attributed to the Council’s fault.
  7. The party was arranged on a date when there were COVID-19 restrictions in place, and these were subject to review and change at any point. Therefore, organising any activities during this period came with a certain level of risk. There could have been a last-minute change for another COVID-19 related reason.
  8. Although it was late notice, and later than it needed to be, the Council told Mr C before the date of the party it could not go ahead as planned. It also told him he may wish to consider rearranging it for a later date when the restrictions were changed (that was due to be on 19 July 2021).
  9. I understand the difficult situation Mr C was in when he was faced with having to change or cancel his party and cause disappointment and inconvenience to his guests. He had also employed people for the party and hired equipment. But, it was his decision to go ahead with the party and make the changes despite the risk.
  10. The injustice was not the cost of the party and the associated time he spent organising it as the party was not cancelled. It just did not happen in the way Mr C wanted or had planned.
  11. Therefore, we are left with the uncertainty of what may have happened if the Council had recognised the issues and communicated them to Mr C earlier.
  12. The Council caused Mr C distress because of the way it communicated with him about the party.

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Agreed action

  1. Within one month of my final action the Council agrees to:
    • Apologise to Mr C.
    • Pay Mr C £250 in recognition of the distress it caused him.
  2. The Council should provide the Ombudsman it completed the agreed actions.

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Final decision

  1. I found fault with the Council causing injustice. I completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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