Summary: Mr C complained the Council failed to properly consider his application for a street trading consent and wrongly revoked it the day after it granted it to him. As a result, Mr C said he experienced financial loss and distress. The Council agreed it was partly at fault for its failure to properly consult on his application before granting Mr C the Consent. However, it has already remedied the injustice this caused him.

The complaint

1. The complainant, whom I shall refer to as Mr C, complained the Council revoked his Street Trading Consent the day after it was granted to him. He said the Council failed to:
• properly consider his application before granting the Consent; and
• failed to provide enough support to find an alternative location.
2. As a result, Mr C said he experienced a financial loss. He also said he experienced distress due to his loss of reputation and worries about his financial situation.

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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 my investigation, I have:
• considered Mr C’s complaint to the Council and its responses;
• discussed the complaint with Mr C and considered the information he provided;
• considered the information the Council provided in response to my enquiries; and
• given Mr C and the Council the opportunity to comment on draft versions of this decision and considered the comment received.

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What I found

Law and policy

Street trading consents

6. The Local Government (Miscellaneous Provisions) Act 1982 (the Act) says councils can grant street trading consents for a person to trade from a van or a portable stall in its consent streets.
7. The Act also says a council can attach conditions to a street trading consent and revoke it at any time.
8. Unlike street trading licences, there are no rights for consent holders to make representations or appeal a refusal or a revocation of a licence to court.

Council’s Policy

9. It is the Council’s policy that all streets within its boundaries are consent streets within the meaning of the Act. This means it will consider applications for street trading consent. It does not grant street trading licences.
10. The Policy says it:
• has two pre-approved sites for cafes and promotional spaces;
• any applications for new locations must go through a consultation;
• if it receives objections it will attempt to mediate between the parties;
• if no agreement can be reached it will normally refuse the application; and
• it will not help applicants identify suitable locations for street trading consents.

What happened

11. Mr C wanted to start his business to sell food from his van.
12. He applied to the Council for a Street Trading Consent for a pitch in one of the Council’s streets and purchased the frozen goods needed to run his business.
13. In December 2020, the Council issued a one-month Street Trading Consent to Mr C to trade in the street he applied for.
14. Mr C says he set up his van in the street and started trading the following day. However, the Council then revoked his Consent an hour after he had started trading. And so, Mr C complained to the Council about its decision to revoke the Consent. He said he was unable to sell or reuse the goods he had defrosted and asked the Council to compensate him.
15. The Council asked Mr C to provide evidence for the cost of the goods he had been unable to sell or reuse.
16. Mr C gave the Council the receipt for the goods he had bought. He also asked the Council to consider his proposals for other locations he could trade from.
17. In response, the Council said it had found issues with its Policy. It said it will resolve the issues by widening its consultation in order to prevent such issues happening again. It acknowledged the distress Mr C had experienced and said it would:
• refund the fee Mr C paid for his Street Trading application;
• pay £200 to compensate Mr C for the lost stock; and
• consider the locations he proposed to trade from and would work with him to establish an alternative trading location.
18. During the following month, the Council and Mr C discussed the proposed locations and the Council paid Mr C the £200 and returned the application fee.
19. Mr C was unhappy with the amount the Council paid him and the help it provided to find an alternative trading location. And so, he complained to the Ombudsman.
20. In response to our enquiries, the Council said it revoked Mr C’s Street Trading Consent following complaints by residents of anti-social behaviour, nuisance odours, poor social distancing and health and safety concerns along with obstruction of a footpath. It found Mr C had contributed to the situation and the reasons for the Consent to be revoked. It therefore believes its refund of the fee and the £200 payment towards Mr C’s stock was appropriate.

Analysis

21. The law says the Council can revoke Street Trading Consents at any time. It was therefore allowed to revoke Mr C’s Consent and it refunded the application fee he paid. It was therefore not at fault for doing so.
22. The Council said it had issues with its Policy and it should have made a wider consultation before granting Mr C his Street Trading Consent. However, it also said even if it had consulted more widely, it could not have foreseen some of the complaints it received from the residents. In particular, in relation to concerns about COVID-19, safety and anti-social behaviour which began after he started trading. On balance, I am satisfied that if the Council had consulted as it said it should have, the local resident would have raised their concerns. The Council’s Policy says if such disagreement cannot be resolved, it will refuse an application.
23. The Council was therefore at fault as it should not have granted Mr C the Street Trading Consent in the first place. The Council agreed Mr C had experienced a financial loss. It paid him £200 to acknowledge this and refunded his Street Trading application fee.
24. I acknowledge the cost of Mr C’s defrosted goods were more than the Council’s payment. However, I am satisfied this was enough to remedy the injustice the Council’s fault caused Mr C. This is because:
• the actions of Mr C and his customers contributed to the reasons for the Council to withdraw the Consent; and
• it was not possible for the Council to foresee the concerns raised by residents until after he started trading.
25. In addition, Mr C said the Council should have helped more to find an alternative pitch for his business. The Council gave Mr C some information on his proposed locations and the Council’s pre-approved locations which he could consider. I cannot fault the Council for the support it decided to provide. This is because its Policy says it will not help street trading applicants with identifying suitable locations.

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Final decision

26. There was fault leading to injustice. However, the Council has already remedied the injustice it caused Mr C.

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Investigator's decision on behalf of the Ombudsman