Summary: The Ombudsman will not investigate Mr B’s complaint the Council has failed to review public toilet provision in eating establishments and failed to create a guidance note. Further consideration of the complaint is unlikely to find the Council’s actions have caused a significant personal injustice to Mr B.

The complaint

1. The complainant, whom I shall call Mr B, complains about the way the Council has dealt with his concerns about public toilet provision in food establishments. Mr B says customer toilets must be provided wherever customers have the provision to sit down to consume food and drink, but the Council is not enforcing this. As a result, Mr B visited a café with no toilet available for public use and was told the nearest public toilets were 20 minutes’ walk away.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I have considered the information provided by Mr B and the Council’s response to his complaints. I sent a draft decision to Mr B and considered the comments he made in reply before I made my final decision.

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What I found

6. In 2018, Mr B contacted the Council after he had eaten at a café, asked to use the toilet and been told there was no toilet for customer use. Mr B understood all food establishments with seating had to provide a customer toilet. The staff at the café told Mr B the nearest public toilet was a 20 minute walk away.
7. Mr B has explained he was with a relative who has a long-term health condition and urgently needed to use the toilet. The staff at the café refused access to the staff facilities and there was no time to walk elsewhere. This caused embarrassment to Mr B and his relative.
8. In response to Mr B’s complaint, the Council told him it had received a number of enquiries about a lack of customer toilets in food premises and it was in the process of preparing a guidance note. Mr B says the Council has still not completed a review of toilet provision and has not issued a guidance note. And he says a High Court ruling of 2010 makes it clear that a customer toilet must be provided wherever customers have provision to sit down to consume food and drink, regardless of the number of seats. Mr B says Westminster is one of the most visited areas of the United Kingdom, but with inadequate public toilet provision. The Council has not completed the review, prepared a guidance note or taken enforcement action against food premises with seats but no customer toilets.
9. The Council has explained to Mr B that legislation (Section 20 of the Local Government (Miscellaneous Provisions) Act 1976) says: ‘A local authority may, by a notice served on an owner or occupier of a relevant place in the area of the local authority, require him to provide, sanitary appliances of such kinds and numbers as are so specified’. Therefore, enforcement for non-provision of toilets is a discretionary power and not a duty. The Council has told Mr B it would not serve a notice on the café Mr B visited because it did not consider it could successfully defend an appeal against the notice. The Council explained it considered factors such as the availability of space to install provision, the type of food served and how long customers generally stayed and the availability of plumbing and drainage. Further consideration of the way the Council made its decision not to serve an enforcement notice on the specific café Mr B visited is unlikely to find fault.
10. Mr B raises wider concerns about public toilet provision in general across the Borough and that this disadvantages some disabled people particularly. If the Council has not yet completed a review or provided a guidance note on the provision of customer toilets, the Ombudsman would not consider this as a separate issue of complaint. This is because the Ombudsman could not identify a significant personal injustice to Mr B arising from the lack of a review.
11. The Ombudsman could not conclude the Council would have decided to serve notices on cafes or other food establishments, whether notices would have been successfully appealed, or whether premises would have installed or provided customer toilets. The Ombudsman could not conclude Mr B has suffered significant injustice and is in a worse position now than he would have been if the Council had taken different action.

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Final decision

12. The Ombudsman will not investigate this complaint. This is because further consideration of the complaint is unlikely to find the Council’s actions have caused a significant personal injustice to Mr B.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman