Summary: Mr X complained about how the Council decided to award street trading consents for three sites to a company other than his. The Council was not at fault in how it allocated the consents. It was at fault for poor complaint handling, which caused Mr X undue frustration. The Council will apologise and pay Mr X £100.

The complaint

1. Mr X complained about how the Council decided to award the street trading consents for three sites to a company other than his. He said it acted illegally by allocating the consents based on a tender and that instead, it should have considered applications at its licensing committee.
2. He said this jeopardised his business, caused a loss of income and significant stress.

Back to top

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 an organisation’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)

Back to top

How I considered this complaint

5. I have considered:
• all the information Mr X provided and discussed the complaint with him;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Ombudsman's guidance on remedies.
6. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

Street trading

7. If people want to sell items in public spaces or streets, they need a street trading consent from the local council. The Council's Licensing Service manages approval, renewal and revocation of street trading consents.
8. The ‘renewal’ of a street trading consent is actually a new application which follows a faster process than applications from people who have never had a consent before. This is because the Council already has some of the information it needs to decide whether to approve the application.
9. The Council's policy on street trading says the decision to revoke a consent must always be considered by a sub-committee of the licensing committee.
10. Where a trader’s van is located on private land, the trader will also need permission from the landowner to trade there. Council land, including parks which the public have access to, are private property of that council. At the Council, permission is granted by the Parks and Countryside Service. That Service charges rent for the permission. It also periodically tenders for trading sites on its land so that it can ensure the Council is making a good income. Tendering is when an organisation invites businesses to bid for contracts to provide goods or services on an ongoing basis.

Complaints

11. The Council's complaint policy says it will respond to both stage one and stage two complaints in 20 working days.
12. The Council's policy also says that where a complaint involves more than one service, the managers of the services will need to agree who will investigate and issue a single joined-up response.

What happened

13. This section sets out the key events in this case and is not intended to be a detailed chronology.

Street trading consent

14. Mr X has operated his business at several street trading locations for many years. Two of his locations (Site A and Site B) were on land owned by the Council. For those sites, Mr X had permission from the Council’s Parks and Countryside Service and obtained a street trading consent. Another, (Site C) was located at the entrance to Council land. Mr X only needed a consent to trade there.
15. In mid-2021, the Parks and Countryside Service identified Site C was in fact on Council land, so Mr X now needed its permission to trade there.
16. In late 2021, the Parks and Countryside Service began to tender for sites on its land in advance of March 2022, when all permissions to trade on its land would expire. This included Site A and Site B. The Service offered Mr X an arrangement where he would not need to tender for Site C and could instead have permission to trade there for a total of 3.5 years (a non-tender agreement) before the Council would tender again. Mr X was uncertain whether to accept the offer due to concerns he had about the terms of the arrangement.
17. Mr X sought more information from the Council and ultimately, did not confirm he would go ahead with the arrangement within the required timescale. Instead, he made a new application for street trading consent (a ‘renewal’) for Site C and paid the cost for one quarter of the year. The Council later invoiced him for the next quarter, which Mr X also paid.
18. The Council subsequently granted permission and consent for another business to operate at Site C.
19. Mr X bid for Site A and Site B but was unsuccessful.

Complaints to the Council

20. In late October 2021, Mr X’s partner, Ms Y, complained to a councillor. She said she thought the Council was trying to remove Mr X’s consent to trade at Site C in order to be able to tender for Site B, which was located nearby. She said the Council's decision would put Mr X out of business.
21. The Council's Parks and Countryside Service responded to Ms Y but did not treat her contact as a complaint.
22. In late October 2021, the Council's Licensing Service responded to several emails and a solicitor’s letter from Mr X about the decision that it could tender for Site C. It did not treat his contact as a complaint.
23. Mr X complained to the Ombudsman in mid-February 2022. We asked the Council to consider his complaint under its complaint procedure. Mr X’s complaint said:
• he was unhappy the Council had decided Site C was now on its land;
• he felt it should allow him to argue his case in front of the licensing committee;
• the Council wanted Site C so it could put Site B out for tender; and
• the Council was acting illegally by allocating street trading consents through the tender process.
24. The Licensing Service responded to Mr X’s complaint at stage one in early April 2022. In summary, it said:
• without the permission from the Parks and Countryside Service, the Licensing Service was unable to award a street trading consent for Site C to Mr X; and
• if Mr X was unhappy with the actions of the Parks and Countryside Service, he would need to complain to it directly. The Licensing Service had no control over that department.
25. Mr X replied the same day to say:
• the Council's licensing committee should have considered who to award the street trading consents to. Parks and Countryside should not have been allowed to make the decision based on the tender;
• if the Council wanted to revoke his consent for Site C, it should have been considered in front of the licensing committee; and
• the Council had just invoiced him for the consent for Site C for the second quarter of the year even though he would not be trading on it.
26. The Council responded to Mr X’s stage two complaint in early November 2022. In summary, it said:
• it was sorry for the delay in responding to his complaint. It said Mr X raised a number of issues that took careful investigation and the Council had experienced high workloads over the summer;
• the licensing committee was not able to consider applications for street trading consents unless the applicant had permission from the Council to trade on its land;
• the Council made several attempts to ask Mr X if he would agree to its proposal of a non-tender agreement but did not receive a response; and
• it should not have asked Mr X to pay for the consent for Site C when he did not have permission to trade there. It was sorry for the mistake and would refund him all the money he had paid.

Contact with the Ombudsman

27. In September 2022, the Council told the Ombudsman it had tried to speak to Mr X to arrange a time to share the outcome of its stage two investigation. Mr X had refused so it would try to make further attempts and otherwise send a letter.
28. Mr X sent me minutes of a previous licensing committee which said “it is illegal to allocate consents on a tendering process, therefore, each application should be dealt with on its own individual merits”.

Findings

Street trading consent

29. Mr X feels the Council illegally allocated the street trading consent for Sites A, B and C because of the finding of a previous licensing committee which said it was illegal to allocate consents based on a tender. However, the Council did not do this. It used the tender to decide which businesses to give permission to. I have seen no evidence to suggest the Council is prevented from doing this. The Council was not at fault.
30. Mr X also said the Council wrongly revoked his consent for Site C because its policy on street trading says revocations must be considered by the licensing committee. The Council did not revoke Mr X’s consent; it expired, and the Council did not award a new consent. It explained in its complaint response that it should not have taken Mr X’s payment for the consent because he did not have permission to trade at Site C. This meant he could not have a consent. As such, the Council offered him a refund on the money he paid. Approval for consent is not required to be heard by the licensing committee, so the Council was not at fault for not hearing Mr X’s case there.
31. In any event, the Ombudsman's role is to make decision on maladministration and service failure; we are not able to say whether a council has acted legally. The courts are the body set up to make such judgements. The courts are also able to require councils to pay for loss of earnings; this is not something the Ombudsman can do. It is open to Mr X to take court action to address his concerns.

Complaints

32. The Council's response to Ms Y and Mr X’s concerns was poor. Ms Y contacted a councillor in October 2021 and Mr X separately sent several emails and a letter to the Council around that time. The Council did not treat any of those contacts as a complaint. It was clear Ms Y and Mr X were complaining about significant decisions the Council had made; it should have responded to those concerns using its complaints procedure. The Council’s failure to do so was fault and delayed it considering Mr X’s complaint.
33. The Council sent Mr X its stage one response in April 2022. However, the response, from the Licensing Service, was not in compliance with the Council's complaints policy. This was fault. The response only addressed the actions of the Licensing service and directed Mr X to make another complaint to the Parks and Countryside Service if he was unhappy with its actions. Mr X complained about the actions of both Services and as such, the Council should have ensured he received an appropriately joined-up response.
34. Finally, the Council took seven months to send Mr X its stage two response. I recognise the issues Mr X raised were complex and the Council said it had a backlog of complaints. However, I note the Council told the Ombudsman in September that it had tried to speak to Mr X to communicate the outcome of its investigation but was unsuccessful. It did not send the written outcome until November. There was a significant delay in responding to Mr X’s stage two complaint, which was fault.
35. The faults identified in paragraph 32, 33 and 34 caused Mr X undue frustration, which warrants a remedy.

Back to top

Agreed action

36. Within one month of the date of my final decision, the Council will:
• apologise to Mr X for the frustration caused by its failure to respond to his, and Ms Y’s, complaints appropriately; and
• pay him £100 in recognition of that frustration.
37. Within three months of the date of my final decision, the Council will remind staff in the Parks and Countryside Service and the Licensing Service of its complaints policy. This has to include:
• when to respond to contact as a complaint; and
• that they should work together to provide complainants with a joined up, comprehensive and timely response when they receive complaints about issues that involve more than one service.

Back to top

Final decision

38. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Back to top

Investigator's decision on behalf of the Ombudsman