Summary: Mr X says the Council is at fault in how it decided not to include a street in its designated list of streets where trading could take place. The Ombudsman has found evidence of fault by the Council in the matters he investigated and recommended it reconsider including the street where Mr X traded on its designated list. The Council agreed and for this reason the Ombudsman has ended his investigation of this complaint.

The complaint

1. Mr X says the Council is at fault in how it decided which streets it would designate for licensed trading. He says the Council misrepresented the facts in a report it provided to a meeting of the Full Council and did not properly justify its decision to exclude the street where he used to trade.

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What I have investigated

2. I have exercised discretion to look at matters which Mr X learnt of in December 2016 and my reasons for doing so are explained elsewhere in my statement. I have not considered matters that have been before the courts or which were known to Mr X before December 2016. The latter parts of my statement explain my reasons for not doing so.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
5. 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)
6. 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)
7. 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

8. As part of my investigation I discussed the complaint with Mr X and considered information he provided. I made enquiries of the Council and considered its response and information it provided. I set out my initial thoughts on the complaint in a draft decision statement and I considered Mr X’s comments in response.

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What I found

9. Mr X is a street trader. When the Council refused his application for a street trading licence, he appealed to a magistrates’ court, and in February 2015 the court ordered the Council to grant him a six month licence to trade in Street Y.
10. In July the Council’s Full Council considered a proposal to change its street trading policy so that it only issued one year licences for a number of designated streets.
11. The report provided to the Full Council said:

• the proposal had been put forward to allow street traders to plan and operate in a more sustainable manner;
• appropriate consultation had been undertaken and no response received;
• Street Y was not on the proposed list of designated streets; and
• Mr X had a temporary six month licence (this was incorrect as the Crown Court subsequently ruled that Mr X held a street trading licence and not a temporary licence).

12. Minutes of the meeting show that a councillor asked why Street Y had not been included in the designated streets. The councillor was told there were ongoing complaints from local residents and that Mr X could be relocated to a designated street.
13. The Full Council agreed the proposal would take effect on 1 September following publication of a draft resolution.
14. In August Mr X applied to renew his trading licence. The Council refused because Street Y was not on the list of designated streets. Mr X began an appeal against the decision in a magistrates’ court.
15. In October Mr X’s solicitors sent a Pre-Application Protocol letter to the Council saying it intended to challenge the Council’s decision of July 2015 by Judicial Review. It cited concerns about inadequate consultation, inaccuracies in the report and the arbitrary exclusion of Street Y.
16. The Council replied that it had carried out consultation. It explained why Street Y was not included and said it could not comment on the claimed inaccuracies as no details had been provided. No application for Judicial Review was made.
17. In February 2016, the magistrates’ court dismissed Mr X’s appeal against the Council’s decision not to renew his license. Mr X appealed against the decision to the Crown Court.
18. However, Mr X withdrew his appeal because he says a council officer called his son’s employer and spoke with his head of department. The Council says it has no evidence of any officers calling Mr X’s son’s employer and there was no reason to do so.
19. Mr X had continued to trade from Street Y while pursuing his appeal, which he maintains he had a legitimate right to do. I understand that during this period councillors had advocated enforcement action be taken against him for trading without a licence.
20. Mr X had also made Freedom of Information (FOI) requests to the Council about the nature of the complaints referred to during the Full Council meeting.
21. The Council initially told Mr X that the complaints were anecdotal and not recorded. However, in December it provided him with details of 11 complaints received between April 2015 and June 2016. Only six complaints had been recorded prior to the Full Council meeting, one was about another trader and four were enquiries about Mr X’s licence and street trading in that location. Only one complaint was about noise and pollution from Mr X’s trading, matters which Mr X says were raised and dealt with to the satisfaction of the courts when he was granted a street trading licence in February 2015.
22. In April 2017 Mr X made an FOI request for information relating to costs the Council had incurred in implementing its new street trading policy. The Council did not reply and cited an exemption as the reason for not doing so.
23. Mr X amended his request in May so that it also included details of costs for enforcing and talking legal action as a result of disputes about this matter. Again, the Council did not reply citing an exemption. Mr X appealed to the Information Commissioner about both requests. The Commissioner upheld the Council’s decision.
24. In August Mr X complained to the Council about its decision of July 2015. In particular he said:

• the report was flawed because it said he had a temporary licence;
• information regarding complaints was misleading; and
• he had been discriminated against by officers and councillors who had tried to block him being given a licence and had aggressively pursued enforcement action against him for trading in the period September 2015- June 2016.

25. The Council replied refuting Mr X’s claims that officers and councillors had discriminated against him. It also said that concerns about the Council’s decision should have been raised earlier and it was too late to consider them now.
26. Mr X remained unhappy and complained to us.

Analysis

Complaints about trading in Street Y

27. Mr X did not receive substantive information about the nature of the complaints from local residents referred to during the Full Council meeting until late 2016. Mr X was pursuing other information requests in early 2017 and I can understand why he waited until the conclusion of these before submitting a complaint to the Council. Therefore, I do not see he could have complained about this matter earlier and so I have exercised discretion to consider this aspect of his complaint now.
28. The Council initially told Mr X there were no records of the complaints and that they had not been recorded. It later supplied details. This is fault. The Council should have provided accurate information to Mr X. It also decreases confidence the Council has recorded complaints about trading in Street Y accurately.
29. Minutes of the Full Council meeting show that complaints from local residents were cited as the reason for not including Street Y in the Council’s list of designated trading streets. The report provided to Full Council does not provide any other reasons for excluding Street Y. For this reason, I conclude the complaints were the rationale behind the decision to exclude Street Y.
30. I would therefore have expected a fuller explanation of the nature of the complaints to have been given in response to the question by a councillor at the Full Council meeting. Information provided suggests that at the time of the meeting only one complaint about Mr X’s trading had been received. It would not appear this was considered serious enough to investigate with Mr X nor was he informed about the any of the alleged complaints. The other complaints appear to have been more akin to enquiries about whether Mr X had permission to trade there, understandable enquiries as Mr X had only had a licence to do so since February 2015 with the first of several iterations of the license being issued by the council to Mr X from May 2015 onwards.
31. For the above reasons, I consider there are grounds to question whether members would have agreed to omit Street Y from the designated street list if a fuller explanation had been provided at the meeting or in the report.

Agreed action

32. I identified fault by the Council that questions the merits of the decision made by the Council in July 2015. I recommended the Council reconsiders if Street Y should be included in the Council’s list of designated streets using its current Street Trading Policy.

Final decision

33. I have ended my investigation of this complaint as the Council agreed to my recommendations.

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Parts of the complaint that I did not investigate

34. I have not investigated Mr X’s concerns about the matters cited in his Pre-Action Protocol letter to the Council of October 2015. These included his concerns about inaccuracies in the report provided to Full Council. This is because Mr X was clearly aware of his concerns at this time. I therefore consider it would have been reasonable for Mr X to have complained to us sooner.
35. I also note Mr X has concerns about the Council’s handling of his application for a renewal of his street trading licence in August 2015. This matter has been considered by the courts and so we cannot consider it. We have no discretion in this.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman