Summary: Ms X complained about the Council’s handling of a licensing application and hearing. She complained the Council failed to appropriately respond to, or learn from her complaint about these matters. The Council dealt appropriately with Ms X’s complaint about its handling of this matter and a related councillor issue. We have not investigated the Council’s decision to award the license because Ms X had a right of appeal at the magistrates court. Her concerns about the process are indivisible from the merits of that decision. Ms X could have appealed against the licensing decision.

The complaint

1. Ms X complains the Council did not properly comply with relevant legislation and policy when granting a perpetual license for an annual music event. It did not follow required processes and procedures dealing with the application, reaching its decision and granting the license. Ms X wants the Council to review its approach to ensure it complies with legislation and guidance, keeps adequate records of decisions, advice given and its reasoning apportioning weight for making decisions. It should learn from complaints to improve how it works, apologise to local residents and review the event license.

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What I have investigated

2. I have investigated the Council’s response to Ms X’s complaint and its actions to learn from the event about which she complains.
3. I have not investigated the Council’s decision to issue a license for the reasons set out in paragraph 38-39.

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The Ombudsman’s role and powers

4. 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)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. 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

7. I spoke to Ms X about her complaint.
8. I asked the Council questions and considered its records.
9. I gave the Council and Ms X the opportunity to comment on my draft decision. I considered Ms X’s comments before making a final decision.

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What I found

10. The Licensing Act 2003 gives councils duties to license a range of activities including carrying out licensable activities such as the sale of alcohol and regulated entertainment (including certain types of performance of live music) at temporary events.
11. The licensing objectives are:
• prevention of crime and disorder
• public safety
• prevention of public nuisance
• protection of children from harm
12. Any person or body has the right to appeal against a licensing decision in the courts if they have made relevant representations about the license application. Complaints about the outcome of a license hearing by the applicant or an objector are therefore usually outside the Ombudsman’s jurisdiction as only the court can change the outcome of a licensing decision.
13. In this complaint, Ms X raises concerns about the process the Council went through to consider and award the license, but says she is not complaining about the licensing decision itself. She also raises concerns that she could not appeal against the decision because the Council had not given her access to records of the decision within the timescale required for an appeal.
14. Normally we will not investigate a complaint about how the council has dealt with something where we decide not to investigate the substantive matter.
15. The Localism Act sets out the system of regulation of standards of member conduct. Councils have to have a code of conduct for members and procedures in place to deal with complaints about member conduct.
16. The Ombudsman does not offer a right of appeal against a council’s decision on member conduct complaints, but we can consider if there was fault in the way the council considered the complaint.

Background

17. Ms X lives in a community where an event requiring licensing was planned. The event had been running under temporary licensing. An application for a license under the provisions of the Licensing Act was made to the Council. Ms X submitted objections to the Council about the impact of the proposed event on behalf of a local residents’ group.
18. The Council’s licensing decision making committee rejected the application on a range of grounds.
19. A second application was made. Ms X submitted further detailed comments regarding the event on behalf of the residents’ group.
20. The Council licensing sub-committee considered the resubmitted application. The officer’s report set out discussions with interested parties and summarised representations made, including from Ms X. It summarised relevant policies and legislation. It identified issues for the sub-committee to consider in making its decision about the license. The sub-committee gave approval to a license on a reoccurring basis (because the event was planned to reoccur each year).
21. The decision notice set out the rationale for the decision including consideration of the Council’s licensing policy, discussions held with the applicants, consideration of comments received and measures to mitigate any negative impacts of the event. The minutes of the meeting were published over a month after the meeting.

Ms X’s complaint

22. Ms X submitted a detailed complaint to the Council before the event was held about its decision. She argued its decision was not evidence based and had not properly considered legislation or statutory guidance. She said the Council had not shown why it had changed its decision between the first and second application. It had not yet published a record of the meeting. She also referred to the actions of the chairman of the decision making committee. She said the chairman had a conflict of interests concerning his relationship with the event organiser. She said he had changed the order of business and that this disadvantaged protestors.
23. The Council replied at stage 1, not upholding Ms X’s complaint. Ms X asked for the complaint to be considered at stage 2 as its reply had not addressed all the points she made. The Council met with Ms X to clarify the points in her complaint.
24. The Council deputy monitoring officer separately responded to the member standards part of her complaint. He determined there was no case to answer because the chairman had acted on the advice of the monitoring officer, legal officer and licensing officer. There was no evidence of misconduct. The alleged conflict of interests related to a single use of a business facility run by the applicant. The chairman was satisfied this did not cloud his judgment and he could therefore proceed with the hearing.
25. The Council’s response at stage 2 further dealt with Ms X’s complaint. It referred to Ms X’s right to appeal the licensing decision to the magistrates court. It explained that this right was not dependent on Ms X having a record of the meeting. It would be a new hearing and would only be reliant on the facts of the case. It was satisfied it had complied with relevant legislation and had appropriately consulted. It referred Ms X to the Ombudsman.
26. In her complaint to us, Ms X explained she had not appealed against the license because she had not had access to minutes of the licensing hearing in time. The Council had not made these available until more than a month after the meeting. By then the time to lodge an appeal had passed. She said it was not reasonable to expect someone to appeal when they were not able to make a fully, informed decision about the matter. She wanted the Council:
• To review its policies and procedures to ensure they are compliant with legislation and guidance,
• Ensure members and staff follow them
• Keep adequate records of decisions made, advice given and reasoning behind them.
• Ensure decision making is robust, evidence based and considers all evidence provided, explaining how it has apportioned weight to each piece of evidence.
• Deal with complaints in a timely manner
• Use complaints to improve services, acknowledging where there is a need for improvement and discussing suitable remedies with complainants.
• Review the license in the public interest
• Apologise to residents for failing to adequately deal with complaints and concerns.
• Explain what remedial measures will be put in place to address residents concerns.
27. Ms X said the Council had made a poor decision because of its use of poor processes. It should review its approach to the administration of meetings so they do not last too long or if necessary adjourn them appropriately. It should also adjourn in circumstances where there is a potential member interest.
28. In response to my enquiries the Council says another party had now requested a review hearing concerning the ongoing licensing of the event and this was taking place shortly.
29. The Council said officers attended the event and its build up. They monitored what happened including food and public safety matters and noise monitoring. They used their experience of the event to inform a subsequent safety advisory group meeting.
30. The Council provided evidence showing the multi-agency safety advisory group that met following the event and discussed lessons learnt from the experience. This included hearing feedback from the police and council officer attendees. It also considered feedback from local residents about their experience. The meeting agreed the next year’s event should make improvements to access, security, event closure, waste management, environmental survey, signage and layout.

My findings

31. Ms X decided not to appeal against the licensing decision because she felt unable to make a fully informed decision about this. She says it was therefore not reasonable for her to have used her right of appeal. The decision had been made and was known to Ms X in time for her and other interested parties to appeal. Ms X had the option to lodge an appeal and did not do so. Ms X did not complain about the decision. Therefore I have not investigated the Council’s licensing decision. Ms X’s concerns about the adequacy of the process leading up to and at the point of making the licensing decision are indivisible from the merits of that decision itself.
32. The Council responded to Ms X’s complaint appropriately at stage 2. It explained the basis for its decisions and why it was satisfied they had been made without fault. It explained her right to lodge an appeal about the licensing decision with the Magistrates’ Court.
33. Ms X has serious concerns about what happened regarding the event after her complaint. I have not reached findings on this as they did not form part of her complaint I have investigated. She can complain to the Council, it can consider her complaint and then she can come to the Ombudsman if she is not satisfied with its response.
34. The Council considered Ms X’s allegations regarding the Chairman’s according to its Code of Conduct. It decided the allegations did not warrant further investigation, having consulted, appropriately with the Independent Person about similar allegations from another person. There is no evidence of fault in how the Council investigated Ms X’s member conduct complaint.
35. Ms X says the Council should consider its guidance for effective meeting management, including when meetings should be adjourned. Although a different approach to meeting management may have been taken, the Council chairman did not make administrative fault by conducting the meeting in the manner he chose to.

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Final decision

36. I have completed my investigation. I have not found evidence of fault in the Council’s actions.

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Parts of the complaint that I did not investigate

37. I have not investigated the Council’s decision to award the license because this is a decision for which Ms X had a right of appeal to the magistrates court.
38. The law specificially gives persons this right of appeal against licensing decisions they are unhappy with. It was reasonable to expect Ms X to use the appeal right the law provides.

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Investigator's decision on behalf of the Ombudsman