North Lincolnshire Council (18 001 039)

Category : Environment and regulation > Licensing

Decision : Not upheld

Decision date : 21 Dec 2018

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to properly investigate or take action against an unlicensed business operating next to his former business. The Council is not at fault. It considered evidence Mr X and others provided. It took informal action to check on the premises and decided it did not have enough evidence to take formal action.

The complaint

  1. Mr X complains the Council failed to properly investigate or take action against an unlicensed business operating next to his former business. Mr X says he repeatedly reported his concerns to the Council and provided evidence from other people about it. He says the Council kept promising to take action but did not do so.
  2. Mr X says that as a result of the unlicensed business taking his trade, his own business closed.

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The Ombudsman’s role and powers

  1. 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)
  2. 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 X and considered information he sent.
  2. I asked the Council about the complaint and considered:
    • Case records including a video of its search of social media concerning allegations made by Mr X.
    • Its Enforcement Policy and Business Compliance and Support Policy.
  3. I considered Government guidance on this type of business and the Local Government (Miscellaneous Provisions) Act 1982.
  4. I wrote to Mr X and the Council with my draft decision and gave them an opportunity to comment. I then considered further evidence Mr X provided including his telephone calls to me, social media records, witness statements and photographs.

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What I found

  1. The Local Government (Miscellaneous Provisions) Act 1982 states that anyone “carrying out the business of [this type of business]” must register with their council. This law only covers businesses. This means people who charge for services. There is no law that gives councils licensing control over people carrying out this activity but who do not charge for their work. Councils can make byelaws to ensure cleanliness and hygiene of places where the activity takes place.
  2. A council can enter any premises if it has reason to suspect an offence under the Act is being committed. To do this the council has to get a warrant from a magistrate. Magistrates have to consider whether the council has reasonable grounds to use a warrant.
  3. This Council’s website says that when a business of this type asks for registration, an officer will visit and check the premises are hygienic and safe.
  4. The Council’s enforcement policy is to respond to reports about unlicensed businesses by considering whether to take informal action, issue a written warning or take formal legal action. It considers the seriousness of the issue, its impact, past performance and relevant guidance to make this decision.
  5. The policy says the Council will:
    • Make an initial assessment – to consider the case
    • Review evidence - to decide if the law is likely to have been breached and whether there is enough evidence to investigate further.
    • Select appropriate action – based on the seriousness, likelihood of reoffending, deterrence value and history of any past breaches.
  6. The Council’s policy says it can decide to change its approach during an investigation if it considers this is more appropriate having looked at the evidence. If the Council decides not to take action it tells this to the person making a complaint and the person who was being investigated. The Council’s policy is usually to inform people before it visits them to inspect unless it thinks this would alter their behaviour.
  7. Councils must have data retention policies to govern how long they have to keep data of certain types. This Council’s data retention policy is to only retain records about this type of business registration for six years. It then destroys any records.

Background

  1. Mr X ran a business of this type, registered with the Council, from 2008 until he closed it in September 2017. In July 2017 he contacted the Council to report what he thought was an unregistered business of the same type operating near him. He said that property, which I shall call Z, was disposing of business waste in its household waste. He told the Council to speak to a community warden who had witnessed the situation and seen a customer leaving Z. The Council interviewed its community warden. It says the warden told it he had not seen evidence Z was operating as a business, meaning evidence it had charged for custom.
  2. Council officers say they recalled Z had been the subject of a report about possible operation of a business in 2011. The Council says it thought this report, together with Mr X’s more recent report, would likely meet the threshold to ask a magistrate for a warrant to search the premises. Mr X says he was not aware of a business operating there in 2011.
  3. Mr X remembers being told by the Council that it was preparing a case to take formal action against Z. He remembers the officer telling him not to worry and that the Council was going to sort things out. Several other witnesses refer to hearing conversations referring to the Council giving Mr X this reassurance. I am satisfied that Mr X was given this assurance.
  4. However the Council says it then realised it had destroyed records of what happened in 2011 in line with its data retention policy. Without this written evidence it therefore decided it did not have enough evidence about Z to meet the threshold to go to a magistrate to ask for a warrant. It did not take the action Mr X expected.
  5. Mr X visited the Council offices at the end of July. He said he thought Z was using Facebook to attract customers. He provided Facebook posts about his neighbour and a video of an incident in late July. I have not seen this video. He provided the Council with statements from various people who had witnessed a woman coming into Mr X’s business, being directed next door and then emerging later on having received a service from Z.
  6. The Council searched Facebook for evidence of the neighbour operating as a commercial business. I have seen a video of its search, showing it looked at the records of named individuals, the property and its location. This search did not show evidence of the operation of a business charging for services at Z.
  7. The Council continued reviewing evidence to decide whether there was enough to justify using a warrant to search Z. It explained to Mr X this might take some time.
  8. Mr X continued to contact the Council during August. He wanted the Council to take action. He said customers of Z were entering his business by mistake instead of going to Z. He said it was obvious Z was carrying out business activity because of equipment visible in its front room.
  9. The Council wrote a formal letter to Z to advise of the consequences of operating an unlicensed business. The Council visited Z in September. It was told Z was only providing services to friends and family without charging them. It gave advice so Z could safely continue the activity on a non-fee paying basis. It held a further review meeting and updated Mr X that he needed to provide evidence Z was operating as a charging business.
  10. The Council visited Z again in late September and again found no proof of a business in operation. The Council reviewed the case at the end of September and decided, as it still had no adequate evidence of Z charging for services, it could only keep taking informal action.
  11. Mr X told the Council he had now closed his business because he could not continue. He referred to his desperation, debt, poor mental health and said he would publicise what had happened. He said it was unfair for him to lose his livelihood because Z was trading illegally.
  12. Mr X called the Council again in October saying nine or ten people a day were visiting Z. He said these were not friends or family of Z and that clearly, therefore, Z was running as a business. He said trade and commercial supplies were being delivered to Z. He said he had spoken to people who had been charged for services at Z. He said he had heard people outside trying to contact Z who did not know where to go. He provided the Council with various emails from third parties. The Council told Mr X it would consider the evidence he had given it.
  13. The Council considered these emails and both it, and Mr X, provided me with them. The emails express concern about the closure of Mr X’s business and ask the Council to act. They refer to witnessing abuse of Mr X and his wife by individuals associated with Z. They refer to deliveries of commercial materials to Z. None of the emails were from people who said they had paid for or who had proof that others had paid for services at Z.
  14. A Council case record from October summarised action so far. It said the Council could still take enforcement action if it had enough evidence to justify a warrant. It said the Council did not have enough evidence of a business for this to happen. It continued to have concerns about Z. But without enough evidence to justify a warrant it could not take further action.
  15. The Council wrote to Mr X in October to explain it could not find evidence of sufficient quality to show a business was operating at Z. It had considered making an unannounced visit but decided, after legal advice, to take informal action instead. It said it had visited Z to give advice. It had told Z it would take further action if it found any evidence of it operating as a business.
  16. Mr X arranged to drop off further papers at the Council in early December 2017. These included emails and letters from third parties about his business. The Council did not meet with Mr X when he visited the office although he is sure it had offered to do so.
  17. The Council wrote to Mr X in January 2018 to say it had considered the evidence he provided but this had still not changed its decision. It was not sufficient proof of a business operating at Z. It said the reports of abuse of Mr X and his wife were matters for the police. It said it had taken a long time to consider the matter but that was because of its complex nature. It referred Mr X to the Ombudsman.
  18. Mr X then corresponded with his MP about the situation and complained to the Ombudsman. He said the Council had ignored the evidence he provided, had told him it would close Z down but had not done so. He said several of Z’s customers had been in his business by mistake. He said the Council had not contacted the witnesses he told it about.
  19. When I spoke to Mr X he said the Council had helped Z operate, instead of listening to his witnesses. He said it had refused to meet with him, made promises to sort things out and misled him. He says Council officers told him they were about to take action against Z but had then not done so.
  20. In its response to my enquiries the Council said Mr X had provided no evidence from individuals who had paid for services at Z. It said it had taken Mr X’s report seriously. It did not have enough evidence to go to a magistrate for a warrant.
  21. After reading my draft decision Mr X told me that the police were now investigating Z. He provided me with witness statements and emails from individuals who had witnessed events in July 2017. These again confirm a woman came into Mr X’s business asking about free services, went next door to Z then left having received the service. None of the further evidence refers to Z charging for services. He also said he had tried, without success, to speak again to the Council about what had happened.

My findings

  1. When Mr X reported his concerns about Z, the Council investigated and had to decide whether it had enough evidence to take formal action. At first it told Mr X it had enough evidence to take formal action.
  2. The Council says it realised it had destroyed records from 2011. The Council was entitled to destroy records concerning these matters after six years. It was, by then, six years since the earlier record.
  3. It was unfortunate the Council gave Mr X the impression it would take formal action. However, in the circumstances of its deletion of historic records in accordance with policy, this was not fault.
  4. The Council considered the evidence Mr X provided. This did not include any evidence from people who personally saw, or were, paying customers at Z. Several people reported they strongly believed this was happening but did not report specific instances. In these circumstances the Council was entitled to decide not to contact the individuals itself. It was also entitled to continue to take the view it did not have enough evidence to take formal action.
  5. The Council also carried out an appropriate search on social media after Mr X drew attention to what he saw on Facebook. Because the Council found no evidence from Facebook of a business operating at Z it was entitled to still decide the threshold for formal action had not been met. The Council also appropriately referred Mr X’s allegations of assault to the police.
  6. Despite Mr X’s report, in October 2017, of many people visiting Z during the day, the Council still had no first hand reports from people paying for services. Mr X is extremely concerned the Council should have taken more active steps to investigate, for example by covertly observing events at Z for a period of time.
  7. I cannot say the Council’s decision not to carry out specific further investigation was fault. It visited Z several times, considered all the evidence Mr X provided and made further enquiries.
  8. Mr X has referred to ongoing police action concerning Z. Should the Council receive any new evidence as a result of this activity, we would expect it to consider whether to take any formal action concerning Z.

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Final decision

  1. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman

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