Summary: We will not investigate this complaint about the Council’s decision’s over issuing a premises licence to Mr X. It is reasonable for him to pursue his claims for loss of income in the courts.

The complaint

1. Mr X says that the Council issued a premises licence for events at his business in 2022 but then voided the licence and issued one with stricter conditions following an admission of fault in the licensing procedure. He says he lost money on events because the temporary event notices it gave him for this period and the new conditions limited the number of attendees. He wants the Council to pay him £35,665 which he says he lost as a result of its actions.

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The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Mr X applied to the Council for a premises licence in 2022 so that his business could host events later in the year. The Council approved the licence in April 2022 but shortly afterwards withdrew it because they failed to follow the correct procedure. Some of the information submitted with the application was not disclosed to objectors so they were unaware of the full details.
6. The Council re-convened the licensing sub-committee in May and a new licence was issued following consultation with the objectors on the new material and Mr X’s comments. The new licence included additional conditions which Mr X says are onerous. In addition, the Council gave Mr X temporary event notices for upcoming events so that he could continue with his programme.
7. Mr X subsequently sent a ‘letter before claim’ notice to the Council saying that he believed it had committed the tort of Misfeasance in Public Office by voiding the original licence and that he had suffered financial losses of over £35,600 due to limitations on attendees to events under the new conditions and temporary notices. He told the Council he intends to pursue litigation if his claim is not settled. He also claimed that the Council was in breach of the first protocol of the Human Rights Act 1998 because of the effect on his freedom to operate his business.
8. The Council challenged his understanding of the Act and told him that the licence was reconsidered because of the implications of Article 6 of the Act on the objectors’ right to a fair hearing. It told him that the First Protocol and the Article 8 claim he has made are limited rights which are subject to interference under the law in a reasonable and proportionate manner. It believes that the rights of the objectors to due process for the licence hearing were paramount in this case.
9. The legislation from which the Ombudsman takes his powers also places some restrictions on what we may investigate. One of these concerns claims about legal torts of negligence, damage to property or personal injury. The Ombudsman cannot determine liability claims for tort or negligence. These are legal claims which may only be determined by insurers or the courts. Mr X has made it clear that he intends to pursue litigation if he cannot receive redress from the Council by dispute resolution. It is reasonable for him to seek a remedy in the courts.
10. We can consider whether a council has given due regard to human rights implications of its actions. In this case it is clear the Council has to consider this with regard to both Mr X’s rights to enjoyment of his possessions and the objectors’ rights to a fair hearing. If Mr X wishes to challenge the Council’s views on this matter, he would need to seek legal advice as only the courts can determine breaches of the legislation.

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Final decision

11. We will not investigate this complaint about the Council’s decision’s over issuing a premises licence to Mr X. It is reasonable for him to pursue his claims for loss of income in the courts.

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Investigator's decision on behalf of the Ombudsman