Summary: We upheld Mr X’s complaint about the way the Council reviewed its decision to place a written warning on his licensing record. The Council failed to keep a record of discussions or give reasons for its decisions. This caused uncertainty and frustration for Mr X, and the Council agreed to take action to remedy this.

The complaint

1. Mr X complains about the way the Council reviewed its decision to place a written warning on his licensing record. He says he did not receive a fair hearing. He would like an opportunity to present his case in person.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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. I have considered the complaint made by Mr X and the documents he provided.
6. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
7. Mr X 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

8. Councils must have regard to The Regulators’ Code 2014 (‘the Code’) when forming policy on how to administer hackney carriage (HC) or Private Hire Vehicle (PHV) licensing.
9. The Code requires regulators to ensure clear information, guidance and advice is available. It says regulators shall:
• choose proportionate approaches to those they regulate.
• when responding to non-compliance, clearly explain what the non-compliant item or activity is, the advice being given, actions required or decisions taken, and the reasons for these.
• seek to create an environment in which those they regulate have confidence in the advice they receive and feel able to seek advice without fear of triggering enforcement action.

Council policy on enforcement

10. Licence holders must follow the Council’s code of good conduct. The Council says it will investigate any allegations of harassment, threats or disrespectful behaviour displayed towards licensing staff or managers carrying out their duties. It may report the matter to the police or bring it before the Licensing Committee or relevant Head of Service or Director to decide if it should take further action against the driver or private hire operator.
11. The Council says the Licensing Manager or relevant Head of Service will give a verbal or written warning to the driver where they are satisfied that an incident or offence has occurred. If the nature or level of aggression or unacceptable behaviour from the driver is:

a) serious, and

b) leads the Licensing Manager or relevant Head of Service to be concerned about public safety or the safety of Council staff the matter may be brought before the Licensing Committee for further consideration.

12. The Council says it will operate a firm but fair disciplinary and enforcement regime. It says it will only intervene where it is necessary and appropriate to do so, balancing safeguarding and promoting public safety with the need to allow individuals to protect their livelihood without undue interference.

Principles of good administrative practice

13. The Ombudsman published guidance on good administrative practice for councils in December 2018. One of the principles set out in our guidance is being open and accountable, which includes giving reasons for decisions and keeping proper records.

What happened

14. The Ombudsman has previously investigated a complaint from Mr X about how he was treated by the Council’s taxi licensing department. In that investigation, we found fault with the Council’s application of its enforcement policy in issuing Mr X with a written warning. The Council disagreed with the finding but suggested a way forward.
15. The Council suggested the matter could be returned to the Licensing Committee. So that Mr X would not feel disadvantaged or pressured, it was suggested:
• The Committee would only consider whether to remove the warning from Mr X’s record.
• Mr X would not be at risk of a more severe sanction.
• Mr X could put his full position to the Committee in writing.
• It would advise the Committee to approach the matter with an open mind.
16. We agreed to this proposal and issued a final decision in July 2019.
17. The Council wrote to Mr X in August 2019 inviting him to the next Licensing Committee on 23 September. Mr X decided he did not wish to attend the meeting in person but preferred to make a written submission.
18. The Council wrote to Mr X on 9 September to confirm the written warning issued the previous year expired on 11 September and would no longer be active on his file after that date.
19. The Council prepared several documents for consideration by the Committee and posted them with the agenda on 13 September. This included:
• a report from two senior officers. This asked the Committee to approach the matter with an open mind, having regard to the documents provided to decide whether it was proportionate to remove the written warning in light of the Ombudsman’s findings.
• the Ombudsman’s final decision and further correspondence.
• minutes of the previous Committee which had decided to issue Mr X with a written warning.
• a report from the Licensing Team.
• Mr X’s written submission.
20. The Committee minutes note it was asked to consider whether the formal written warning issued in September 2018 should be removed or if no further action was required as the written warning was appropriate to the circumstances.
21. The Committee minutes note it had read the report and written representations from all parties. It resolved to take no further action as it felt the original decision to issue the written warning was appropriate and proportionate to the circumstances.
22. The Council wrote to Mr X two days after the Committee meeting to tell him of its decision.
23. Mr X complained to the Ombudsman in September 2020. He said he had not received a fair hearing at the Licensing Committee and it had taken advantage of his decision not to attend in person.

Analysis

24. The Council complied with the recommendations from our previous investigation. It invited Mr X to attend the Licensing Committee, but he chose not to attend. It accepted a written submission from him and shared it with Committee members.
25. The Council also carried out the steps it proposed to ensure Mr X would not feel disadvantaged or pressured. It issued clear guidance to the Committee about the decision to be made and to approach it with an open mind. It provided copies of our final decision and circulated papers before the Committee meeting.
26. However, the Council has not recorded how the Committee reached its decision. In response to my enquiries, the Council said it was clear Committee members considered all relevant issues before them. It said there was no requirement for the Committee to explain why it disagreed with the Ombudsman’s findings. I disagree with the Council. While the Council provided the Committee with the necessary documents, the Committee has not shown how it weighed the Ombudsman’s findings and Mr X’s submission against its previous decision to issue a written warning and the report from the Licensing Team.
27. The Council says it would have destroyed the notes of the discussion by Committee members once the minutes had been agreed at a following meeting. This discussion should have been reflected in the minutes. The Council also failed to explain the reasons for the decision in the letter it sent to Mr X following the Committee meeting. The failure to record and give reasons for the Committee’s decision is not good administrative practice and is fault.
28. These faults create uncertainty and frustration for Mr X about how the Committee reached its decision.
29. Mr X has been in conflict with the Council about this matter for nearly four years. His written warning expired almost two years ago. In light of the Council’s response to our previous investigation and to my enquiries, in my view further consideration by the Licensing Committee is unlikely to achieve a different outcome for Mr X and is likely to cause him further frustration. Therefore, I do not propose to recommend a fresh Committee hearing. However, I have made recommendations to remedy the injustice caused to him by the Council and to improve the Council’s administrative practice.

Agreed action

30. Within four weeks of the final decision, to remedy the injustice caused, the Council will:
• Apologise to Mr X for failing to record reasons for the Committee’s decision.
• Ensure a copy of this decision and our previous decision in response to Mr X’s complaint are placed on his driver and operator file.
• Pay him £200 for the uncertainty and frustration caused by the Council’s faults.
• Remind members of the Licensing Committee and officers taking minutes of the need to keep appropriate records of discussions at Committee and the need to give reasons for any decisions made.

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Final decision

31. I have completed my investigation with a finding of fault for the reasons explained in this statement. Mr X was caused an injustice by the actions of the Council, and it has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman