Summary: Mr X says the Council wrongly said a smoking area was in breach of regulations forcing the company he acts for to take costly legal advice. The decision to seek legal advice was made within 10 days of the situation arising and when no threat of legal action against the company had been made. This was a business decision made with no expectation it would be reimbursed but to speed up the process and limit potential further costs.

The complaint

1. Mr X, an agent, representing Company A, complains the Council took the wrong position regarding the compliance of a smoking area leaving it no choice but to seek legal advice to resolve the situation.
2. Mr X says Company A spent over £1,500 on legal advice which the Council should reimburse.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

6. Company A owns a restaurant and bar venue. The venue includes an outside space used as a smoking area. On 17 September 2018, following a visit to the venue, the Council wrote to Mr X saying the smoking area was not compliant with regulations. The Council said the area could be used for smoking if the canopy is removed otherwise Company A would need to take steps to show smoking is not allowed in the outside area.
7. Mr X responded on behalf of Company A saying he did not believe the area was in breach of the regulations. He provided photographs of a canopy and its relationship with the building.
8. The Council responded with further details of why it considered the canopy was not compliant. It said the canopy caused the area to be substantially enclosed. The Council offered further advice about what Company A could do to resolve the situation. In this response the Council said “the guidance, that we have enforced in other similar situations across the city, deems that even if a canvas type structure is open it is still deemed to be closed…” The letter ended with the Council asking Mr X to confirm what he intended to do about the situation.
9. Mr X responded the same day disagreeing with the Council’s assessment of the situation and asked it to confirm “where in law” it states this position. He also asked why the Council has changed its position from 2008 when the Council previously inspected the area.
10. The Council said it did not hold records over six years old and so was unable to comment on any previous advice given about the canopy. It restated its position and asked Company A to consider the options it had given. Mr X responded the same day saying it considered the area to be compliant.
11. On 30 September Mr X wrote to the Council with a copy of Counsel’s advice on the situation. Mr X said Company A felt it had no choice but to seek a legal opinion. He asked the Council to consider the advice and confirm the case was closed or detail what further steps the Council intended to take.
12. Another, more senior, officer visited Company A on 2 October to inspect the area. He then wrote to Mr X on 4 October saying smoking in the area was permissible and the Council had no intention of taking the matter further. He provided a detailed explanation for his decision and acknowledged this position was at odds with what he had been told previously. The Council apologised for the confusion and uncertainty caused. It said it would take the lessons learned from this situation to retrain its officers in order to promote more consistency within the team. The Council also said another officer had confirmed the canopy was compliant with it was first erected but the records of this had been destroyed under data protection legislation.
13. Mr X complained to the Council and asked it to reimburse the legal fees incurred by Company A to resolve this matter. In correspondence, the Council asked Mr X why he did not seek to escalate the matter to a senior officer before seeking legal advice. Mr X said that in correspondence the officer said “we have enforced in in other similar situations” and by using we rather than I it was decided this was a decision by the Council and not an individual officer. Mr X says Company A was left with the option of waiting for costly enforcement proceedings or to seek legal advice to pre-empt enforcement proceedings.
14. The Council considered the request for compensation and took the view it was not justified. It said it the legal costs were incurred as a matter of choice by Company A and outside any formal legal process. It said Company A was represented by Mr X, a licensing professional. It says it has a publicly available enforcement policy on its website which states a business can seek an informal review by a line manage of any officer actions. The Council said the action to seek counsel opinion was highly unusual and not a proportionate response to the stage of the Council’s investigation into the smoking area.

Analysis

15. Mr X is not complaining about the Council’s actions in visiting the property to inspect the smoking area. It is accepted the Council has the authority to do this. He is complaining the Council took the wrong position about the smoking area leaving him with no other choice than to seek legal advice to resolve the situation. Mr X believes the Council should reimburse these costs.
16. The Council responded to the submission of the legal advice by revisiting Company A and changing its view on the smoking area. The decision did not change as a result of any new evidence or change of circumstances. The original decision of the Council was wrong and I consider this to be fault.
17. The information provided shows the Council visited Company A on 14 September. There was email contact between Mr X and the Council on 17, 18, 19 and 21 September discussing the issues. The Council responded very quickly to Mr X’s emails and provided its explanation of the situation. In these emails the Council asked Mr X to say what Company A intended to do. I have carefully considered this email communication and I am not persuaded the Council threatened enforcement action against Company A in any of its communications. It made one general reference to other enforcement action it had taken.
18. I am therefore not persuaded that Company A’s only option was to seek legal advice. While I appreciate it wanted a quick resolution to this issue, legal advice was provided by 30 September, only 10 working days after the issue was first raised. On speaking with Mr X, I take the view Company A’s decision to seek legal advice was a decision made to minimise risk and potential expense. This is clearly a decision it is entitled to take but it did so with no expectation the costs would be reimbursed and so must have been considered a business expense.
19. While it was open to Mr X to seek a second opinion on this matter, I also consider the original officer could have sought this when it was clear Mr X was disputing the decision. I think each party holds equal responsibility in this area. I take this view because Company A was represented by Mr X, a licensing professional.
20. I am satisfied the Council has considered Mr X’s request for the reimbursement of the legal costs. The Council has explained its position and I can see no basis to criticise this. There was no threat of legal action against Company A when it sought legal advice. Matters had only been ongoing for 10 working days and had not become protracted. When the matter was considered by a senior officer the Council quickly changed its position, explained it to Mr X and Company A and apologised. While it is likely the legal opinion was a significant consideration in the Council’s new decision, I cannot say the decision would not have changed if a review had been completed without it. Again, the Council acted promptly on receipt of the legal opinion and provided its response within five working days.
21. While I find fault in this case, I do not consider any further remedy is required. The Council has already apologised and taken steps to prevent the situation occurring again.

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Final decision

22. I will now complete my investigation as no further action is required in this case.

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Investigator's decision on behalf of the Ombudsman