London Borough of Lewisham (19 012 541)

Category : Environment and regulation > Licensing

Decision : Not upheld

Decision date : 08 Sep 2020

The Ombudsman's final decision:

Summary: Mr B complained the Council unreasonably terminated his trading licence, failed to give him notice and treated him differently to other traders. There is no fault in how the Council dealt with Mr B’s trading licence.

The complaint

  1. The complainant, whom I shall refer to as Mr B, complained the Council:
    • unreasonably terminated his trading licence and failed to give him notice when doing so; and
    • treated him differently to other traders.
  2. Mr B says the Council’s actions have led to his business being on the brink of collapse.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mr B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
  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. As part of the investigation, I have:
    • considered the complaint and Mr B's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided.
  2. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background

  1. Mr B has traded on a site owned by the Council for several years. Mr B had a temporary trading licence. In April, September and November 2015 the Council wrote to Mr B about breaches of his licence conditions. In 2016 the Council wrote to Mr B in June and October about breaches of licence conditions. In 2017 the Council contacted Mr B about breaches of his licence conditions in January and June.
  2. A Council officer spoke to Mr B about late trading on 1 May 2018. In October 2018 when walking past Mr B’s trading location an officer identified his vehicle still parked at 7:30pm, in contravention of the licence conditions. The officer identified two men eating inside the vehicle, both of whom said they had just paid for their food. Both said they did not work for Mr B. The officer recorded both smelt strongly of alcohol.
  3. Mr B’s temporary licence expired on 21 October. On 25 October the Council wrote Mr B to tell him it would not sell him any further street trading licences. The Council told him it had reached that decision because of its warnings to him on more than 10 occasions about trading infringements. The Council asked Mr B to remove his trading receptacle from the market by 26 October. The Council told Mr B he could no longer purchase temporary licences to trade on Lewisham markets.

The Council’s policy

  1. The Council’s policy for granting a street trading licence says the Council can grant a temporary trading licence for a single day or for such a period as may be specified in the licence not exceeding six months. It says temporary licences can be more readily revoked than a permanent licence.

The license conditions

  1. This applies to those with both permanent and temporary street trading licenses. The licence conditions make clear any breach of the conditions can lead to licence revocation, licence application refusal, variation of licence conditions or imposition of further conditions. The document goes on to say persistent breach of the conditions is considered an indication a person is not fit to hold a licence to trade within Lewisham. The license conditions say persistent means three or more instances within any consecutive 12 month period or five or more such instances within a 24 month period.

Analysis

  1. Mr B says he has traded on the market for seven years and the Council unreasonably terminated his trading licence with less than 24 hours notice. The first point to make here is Mr B had a temporary trading licence. That means he could trade only for the period of the licence. In this case I am satisfied the Council did not terminate Mr B’s existing licence. Rather, his temporary licence expired and the Council told him he could no longer purchase temporary licences to trade on Lewisham markets due to breaches of the licence conditions. As Mr B has only a temporary licence and that temporary licence had expired I could not say the Council was at fault in relation to how the temporary licence ceased in October 2018.
  2. The issue is therefore whether the Council properly considered whether Mr B could receive a further temporary licence. When telling Mr B of the Council’s decision not to give him a further licence the Council said it had warned Mr B and written to him more than 10 times about trading infringements. I have seen evidence of the Council contacting Mr B about breaches of his license conditions on nine occasions between 2015 and 2018. In some of those letters the Council also refers to verbal advice previously given to Mr B. I am therefore satisfied the Council’s decision not to give Mr B further temporary licences was based on the evidence it had of his activities when operating on the site. As the Council’s policy allows it to refuse to award further temporary licences and it has reached its decision after considering the evidence it has about Mr B’s trading activities properly there are no grounds on which I could criticise it.
  3. Mr B says the Council unreasonably refused to allow him to have a further licence when other licence holders are also breaching their licences by using forklift trucks in the market area. The Council says it does not have any evidence to support Mr B’s allegation. Nor has Mr B provided me with any evidence of traders continuing to use forklift trucks in the market area and not having action taken against them. Given that, and the fact the Council decided not to give Mr B a further license due to the number of breaches of previous licenses rather than a single breach, I have no evidence to suggest the Council treated Mr B differently to other traders.

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Final decision

  1. I have completed my investigation and do not uphold the complaint.

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Investigator's decision on behalf of the Ombudsman

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