Summary: We will not investigate this complaint about the Council’s decision not to take enforcement action against businesses which the complainant says are breaching the conditions on pavement licences. We have not seen evidence of fault in the way the Council responded to the complaints.

The complaint

1. The complainant, I shall call Mr Z, says the Council fails to enforce the conditions on licences allowing business to place tables and chairs outside.
2. He wants the Council to enforce the conditions, apologise and pay compensation to all those who complained.

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The Ombudsman’s role and powers

3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
4. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A (6))

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How I considered this complaint

5. I considered information provided by Mr Z and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. In response to Mr Z’s complaints the Council confirms it has visited the sites and agrees:
• One site had 3 tables and 12 chairs instead of the 2 tables and 8 chairs allowed by the licence
• The other site had not stopped customers using the outside seating from 10pm and the furniture remained outside until after 11pm.

8. We cannot question the merits of a decision on whether businesses are breaching the pavement license conditions unless there is evidence of fault in the way it was reached.
9. In this case, the Council confirms Officers have visited the businesses. It is satisfied the breaches of the licence are not causing demonstrable harm. It says it has given advice and will monitor the situation. However, it considers the breaches are not causing demonstrable harm and enforcement action is not warranted.
10. On receiving a report of a breach of licensing conditions we expect council to investigate the reported breach. It has does so in these cases. And it has decided that formal enforcement action is not warranted.
11. The Council has reached a professional judgement in coming to is decision not to take enforcement action. I have not seen sufficient evidence of fault to justify our involvement.

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Final decision

12. We will not investigate Mr Z’s complaint because there is not enough evidence of fault to justify an investigation.

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Investigator's decision on behalf of the Ombudsman