Telford & Wrekin Council (18 012 154)

Category : Environment and regulation > Licensing

Decision : Upheld

Decision date : 10 Jul 2019

The Ombudsman's final decision:

Summary: Ms X complained the Council revoked her street trading consent without notifying her or explaining why. She also said the Council allowed another vendor who sold similar items to trade near her pitch. The Council was at fault when it did not tell Ms X it had revoked her consent and given it to another vendor but this did not cause her an injustice.

The complaint

  1. Ms X complained the Council:
    • did not make her aware the owner of the land where she traded had revoked her consent to trade there;
    • failed to tell her that as a result, it revoked her street trading consent;
    • failed to give her 21 days to appeal the revocation;
    • did not enforce its policy when another vendor selling similar items began trading close to her pitch; and
    • granted the vendor consent to trade on her pitch without observing the correct process or consulting with her.
  2. Ms X said the Council’s actions caused her financial loss.

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The Ombudsman’s role and powers

  1. 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)
  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 discussed the complaint with Ms X.
  2. I made enquiries of the Council and considered the information it provided. This included email correspondence between Ms X and the Council and a copy of Ms X’s street trading consent.
  3. I reviewed the Local Government (Miscellaneous Provisions) Act 1982, and the Council’s Street Trading - Standard Conditions of Consent and Street Trading Policy statement.
  4. I reviewed the Government’s UK Street trading licence overview.
  5. I have written to Ms X and the Council and considered their comments before I made my final decision.

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What I found

The law and Council policy

  1. The Council must follow Schedule 4 of the Local Government (Miscellaneous Provisions) Act 1982 when issuing street trading consents.
  2. The Council’s Street Trading Consent Conditions states:

“The Applicant shall not trade in any location other than the location permitted by the Consent; and

The Consent does not permit sale or display of goods within 100 meters of another street trader dealing in the same commodities, unless otherwise agreed in writing.”

  1. The Council’s Street Trading Consent Policy Statement states:

“The Council may revoke a street trading consent. This may be for variety of reasons such as non-compliance with conditions, non-payment or because other agencies such as the utility companies require access to the trading location;

If consent is revoked, there is no statutory right of appeal against the decision other than judicial review.”

  1. The Local Government (Miscellaneous Provisions) Act 1982 states a street trading consent may be granted for any period not exceeding 12 months but may be revoked at any time.
  2. The Local Government (Miscellaneous Provisions) Act 1982 draws a distinction between a street trading consent and a street trading licence. If a Council revokes a street licence the applicant can appeal the decision within 21 days whereas a street consent can be revoked at any time with no right to appeal.

Background

  1. On 19 April 2018, the Council granted Ms X a street trading consent. Ms X believed the Council had granted her a street licence. However, the Council has designated all streets within its area as consent streets and this requires a street consent rather than a licence.

What happened

  1. In March 2018, Ms X complained to the Council and the landowner because another vendor, Mr J, was trading within 100 metres of her pitch. She believed this was having a detrimental effect on her business.
  2. Ms X said the Council initially attended the site a few times and asked Mr J to move. However, she said Mr J continued to set up his stall too close to hers and neither the Council nor the landowner prevented him from doing so.
  3. Ms X was unhappy with the landowner’s response, so she decided to withhold one day’s rent to motivate him to address the situation.
  4. In August 2018, Ms X’s landowner emailed the Council to confirm he no longer consented to Ms X trading on his land. The Council has provided a copy of this email.
  5. The Council revoked Ms X’s street trading consent but did not notify her until mid November because the employee handling the matter left the Council. Ms X says she stopped trading in August 2018.
  6. In mid November 2018, Ms X complained to the Council as she had been told Mr J had begun trading on her pitch. She said she was in dispute with the landowner but hoped to resume trading once the dispute was resolved.
  7. Ms X complained the Council failed to take action when Mr J breached the terms of his street trading consent.
  8. Ms X also telephoned the Council around this time to check if it had granted Mr J trading consent. The Council told her it had not done so.
  9. The Council responded at Stage 1 of its complaint’s procedure in late November 2018. The Council informed Ms X the landowner had removed permission for her to trade on his land. The Council explained it had revoked her street trading consent because it was dependent on the landowner’s agreement. It apologised for its delay in notifying her it had done so.
  10. The Council explained that in its view, Mr J and Ms X did not sell the same commodities. The Council, therefore, did not deem Mr J’s stall was negatively affecting her trade.
  11. The Council also confirmed it had granted Mr J trading consent to sell goods on Ms X’s pitch after it had revoked her consent. The Council apologised for having told her this was not the case previously, when she first complained to the Council.
  12. Ms X was unhappy with the Council’s reply and requested a Stage 2 review in February 2019. She said the Council should have allowed her to appeal the revocation of her consent and it failed to assist her when Mr J had been verbally abusive towards her.
  13. The Council replied at Stage 2 of its complaint process, explaining there was no right of appeal for street trading consents. It said it had previously given Ms X the opportunity to provide a witness statement regarding Mr J’s behaviour but did not receive a response from her.
  14. Ms X complained to the Ombudsman.

My findings

  1. The Council did not tell Ms X the landowner had terminated their agreement in August 2018 until she complained in November 2018. This is fault. However, as Ms X stopped trading in August, as the landlord had withdrawn consent, this did not cause her an injustice.
  2. Ms X is unhappy the Council did not explain why the landowner terminated her agreement. There is no requirement on the Council to find out this information. If Ms X remains unhappy with her landowner’s action, she may take this up with him directly. There was no fault in the Council’s actions.
  3. The Council acted in line with its policy when it informed Ms X there was no right of appeal against the Council’s decision to revoke her consent. There was no fault in the Council’s actions.
  4. The Council said Mr J was not in breach of its policy when he traded within 100 metres of Ms X’s pitch because Mr J and Ms X sold different commodities. Ms X disagrees with this and believes their commodities are the same.
  5. It is not the Ombudsman’s role to decide whether a commodity is the same or not. We can only consider if there was fault in how the Council reached its decision. The Council’s policy does not define what commodities are “the same”. Instead officers used their professional judgement to decide the matter. There was no fault in the way it made that decision. Therefore, I will not question the decision itself.
  6. The Council stated that when Ms X contacted it to enquire whether it had granted Mr J a street trading consent, it incorrectly told her it had not. The Council explained this happened because the consent had not been updated on its system. This is minor administrative error and does not amount to fault. In any case, the Council has apologised for the oversight and informed Ms X it would ensure it consistently updated its systems in future. These were reasonable actions for the Council to take.
  7. I will not investigate Ms X’s complaint that the Council granted the vendor consent to trade on her pitch without observing the correct process. This is because even if I found fault, this did not cause Ms X an injustice. And the Council had no duty to consult with Ms X before it gave Mr J consent to trade. Ms X complained the Council did not intervene when she says Mr J exhibited aggressive behaviour towards her. The Council referred Ms X to the police in January 2019 and informed her that depending on police view, the Council may reconsider Mr J’s Street trading consent. These actions were in line with the Council’s policy.
    There was no fault.

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Final decision

  1. I have completed my investigation. There was fault when the Council failed to notify Ms X that it had revoked her street trading consent. However, this did not cause her an injustice.

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Investigator's decision on behalf of the Ombudsman

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