Summary: The Ombudsman will not investigate Mr B’s complaint that the Council has stopped him from selling products on his market stall but it has failed to implement the same policy in other areas of the town. This is because there is not enough evidence of fault in the way the Council has acted to justify the Ombudsman pursuing this complaint further.

The complaint

1. The complainant, whom I shall call Mr B, complained that the Council has stopped him from selling products on his market stall but it has failed to implement the same policy in other areas of the town. Mr B says this has caused him significant financial loss.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

5. 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)

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How I considered this complaint

6. I have considered the information Mr B provided, the Council’s responses to his complaint and the report to and minutes of the relevant Council Cabinet meeting. I have given Mr B an opportunity to comment on my draft decision.

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What I found

7. Mr B told us the Council stopped him selling products on his market stall following a decision it took in 2017 but it has continued to allow the selling of the same products in another area of the town. He says the Council has also failed to apply its policy to another area it leases.
8. Mr B did not complain to us in time about the Council’s 2017 decision. But what appears to have prompted his complaint to the Council and to us is the Council’s subsequent application of its policy. Mr B says the Council has acted unfairly.
9. When it responded to Mr B’s complaint the Council said it does intend to implement the same policy guidance in the area to which Mr B referred. It says it could not implement its policy in areas which form part of the public highway.
10. There is not enough evidence of fault in the way the Council has acted to justify the Ombudsman pursuing this complaint. It has explained to Mr B the reasons for its actions and its future plans.
11. Mr B wants the Council to let him return to selling the products he previously sold for many years and compensation for loss of earnings. In the absence of evidence of fault in the Council’s decision-making process, there is no basis for us to call on the Council to provide the remedy Mr B is seeking.

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Final decision

12. The Ombudsman will not investigate this complaint. This is because there is not enough evidence of fault in the way the Council has acted to justify the Ombudsman pursuing it further.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman