Summary: We will not investigate this complaint about the Council’s decision not to prosecute a supermarket for selling an out of date product. This is because there is insufficient evidence of fault by the Council.

The complaint

1. The complainant, whom I refer to as Mr X, complains the Council will not prosecute a supermarket for selling out of date food. Mr X wants the Council to prosecute the supermarket.

Back to top

The Ombudsman’s role and powers

2. 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 an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)

Back to top

How I considered this complaint

3. I read the complaint and the Council’s responses. I considered the Council’s Enforcement Policy, the Food Law Code of Practice and the Code for Crown Prosecutors. I also considered comments Mr X made in reply to a draft of this decision.

Back to top

What I found

Council Enforcement Policy

4. The policy says the Council considers each case on its own merits. In deciding whether to prosecute it has regard to the Code for Crown Prosecutors. The latter says that for a prosecution to start there must be enough evidence for a realistic prospect of a conviction and a prosecution must be in the public interest. The Council prosecutes for serious or recurrent breaches, or where other enforcement actions have failed. The policy does not say the Council must prosecute every breach.
5. The Food Law Code of Practice says enforcement action must be reasonable, proportionate, risk based and consistent with good practice. There are a range of enforcement actions which can include prosecution. The Code says authorities should usually start with the least robust approach and escalate the approach if problems persist.

What happened

6. A supermarket delivered an out of date custard tart to Mr X. Mr X says his wife could have died if she had eaten it. Mr X reported the incident to the Council.
7. The Council investigated what had happened and liaised with the council which has primary responsibility for the supermarket (the council known as the Primary Authority). The Council found out the breach occurred due to the introduction of a home delivery service and pressures caused by COVID-19. The Council said the supermarket checks dates but, on this occasion, an error occurred. It said the supermarket and Primary Authority had done a full investigation. The Primary Authority reported that the supermarket had overhauled its systems early in 2020 and this review included date checking. The Council said it had not received any other complaints about this store and it was satisfied it was an isolated incident based on unusual circumstances. The Council said it would continue to monitor the store but had decided not to prosecute.
8. Mr X complained about the decision not to prosecute. In response the Council explained that it has regard to its policy, the Food Law Code of Practice, and the Code for Crown Prosecutors. It said the store had sold an out of date product but enquiries had shown it was an isolated event and the shop had already been working with the Primary Authority to improve its procedures. The Council explained that prosecution would not be in the public interest as policies were unlikely to change due to a prosecution and enquiries had shown the incident was unlikely to happen again. It said it does not prosecute purely to take a company to task.
9. Mr X disagrees with the response and wants the Council to prosecute the store. He says the store must be held to account and not prosecuting gives it permission to fail again.

Assessment

10. I will not start an investigation because there is insufficient evidence of fault by the Council. The Council has investigated the breach in line with its policy and other guidance. It is satisfied the incident was an isolated event and, in conjunction with the Primary Authority, it is satisfied the shop does not need to take additional action. The Council is not required to prosecute every incident. In addition, it has explained why it does not think prosecution would be in the public interest and why prosecution would be unlikely to result in any procedural changes. The Council’s decision is consistent with the policies so there is no reason to start an investigation. I appreciate Mr X disagrees with the Council’s decision but that disagreement does not mean the Council has done anything wrong. In addition, I have no power to make the Council prosecute the shop.

Back to top

Final decision

11. I will not start an investigation because there is insufficient evidence of fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman