Decision : Upheld
Decision date : 01 Mar 2017
The Ombudsman's final decision:
Summary: The Ombudsman found fault on Mr C’s complaint against the Council that it failed to ensure the operators of a local sports stadium applied and obtained a safety certificate for the last 2 years. Although the stadium had a safety certificate, the Council was unable to provide copies of its inspection records. Nor did it provide evidence of the officers’ decision of no risk to public safety. The Council agreed to improve record keeping and inspect the ground if not done in last 12 months.
- Mr C complains the Council failed to ensure the operators of a local sports stadium applied and obtained a safety certificate for the last 2 years. As a result, he is concerned about the safety of those visiting and using the stadium.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. He 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, he may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
How I considered this complaint
- I considered all the information received from Mr C on his complaint, the notes I made of the telephone conversation I had with him, and the Council’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr C and the Council. I considered their responses.
What I found
- Mr C used to follow a local football club, Club A, which used the stadium. He does not visit it now. He is concerned the stadium, built 11 years ago, was without a general safety certificate for the last 2 years when Club A went into liquidation. Club B was formed shortly afterwards but the certificate remained in the name of Club A. He also maintains the stadium fails to meet safety levels.
- The Council explains the relevant legislation is the Safety of Sports Grounds Act 1975. The stadium consists of the stands, changing facilities, gym and lounge. It has a capacity of more than 4,000 although the Council explains weekly attendances are usually in the region of 50-70. Club A, a limited company, was the holder of the safety certificate issued in 2005.
- The Council argues that:
- as it issued the safety certificate for an indefinite period, it remained in force after Club A went in to liquidation. The insolvency of Club A did not revoke the certificate under the Insolvency Act 1986;
- a certificate is not automatically cancelled if the organisation holding it is dissolved (section 29 (10) of the Fire Safety and Safety of Places of Sport Act 1987) Club A is still on the register kept by Companies House which means it is not dissolved;
- there was no surrender of the certificate. The Council ‘may’ cancel it but has discretion;
- the 1987 Act allows for the transfer of certificates between operators;
- while Club A technically breached the terms of the certificate by failing to notify it of the change in circumstances, the Council exercised discretion not to take enforcement action. This was because it was not in the public interest as: it was a technical breach; Club A would not operate there again; and it would have wasted public resources as the club was in liquidation anyway; and
- when it discovered the change of circumstances, the Council invited Club B to apply for a new certificate.
- I am satisfied that as the Council granted an indefinite safety certificate, it did not automatically get cancelled when Club A went in to liquidation. This means the safety certificate remained in force after the club went in to liquidation. I found no fault, therefore, on Mr C’s complaint that the stadium was without a safety certificate for 2 years as alleged.
- In reaching this conclusion I note the law provides for the:
- Cancellation, amendment, or replacement of a certificate with or without an application from the holder;
- Transfer of a certificate upon receipt of an application;
- The cancellation of a certificate where the holder or legal body is dissolved. Liquidation is usually needed before a company is dissolved. It involves using assets to pay off debts. Dissolving a company is the process of removing a company from the companies register at Companies House. The company’s name is still on this register which means it is not yet dissolved.
- When Club B took over and started using the stadium, this created an obligation on the holder of the certificate to tell the Council about as it was a change of circumstance.
- Under the 2005 safety certificate, the holder agreed:
- that if the holder is no longer the person responsible for the management of the ground, the Council must receive an application for its transfer to some other qualified person. The Council received no such application;
- to notify the Council in writing within 14 days before any change of circumstances affecting this certificate. Club A failed to do so;
- to the Council reviewing the certificate annually. There is some evidence that officers considered the certificate each year as shown in the minutes; and
- the holder shall ensure all buildings and installations are maintained unobstructed and in good repair to safely fulfill their functions.
- The Council is under a duty in terms of enforcement to arrange periodic inspections of the stadium (section 34 Fire Safety and Safety of Places of Sport Act 1987 Act). Although it claims officers carried out inspections, it failed to provide evidence showing this. This is fault. It also failed to provide evidence of the decision that the public was not at any serious risk.
- I am not satisfied the failures to record and retain these inspection records, or record the officers’ decision, caused Mr C a significant injustice. This is because I am not aware of any incidents at the grounds during this period affecting public safety. I also note Mr C did not attend the grounds during this period either.
- I have considered our internal guidance on remedies.
- The Council will, within 4 weeks of the final decision on this complain:
- take steps to ensure records of inspections and key decisions about whether there is a safety risk to the public are made and retained; and
- start to arrange an inspection of the grounds if one has not been done within the last 12 months.
- The Ombudsman found fault on Mr C’s complaint against the Council.
Investigator's decision on behalf of the Ombudsman