Summary: The Ombudsman will not investigate Mrs X’s complaint about the Council’s investigation of an incident of food contamination at a restaurant. We are unlikely to find fault in the Council’s investigation and further investigation is unlikely to lead to a different outcome. The Council has apologised for failing to communicate with Mrs X as it should have done. I consider this is a suitable remedy to this part of the complaint. Finally, we cannot achieve the outcome Mrs X is seeking. Issues of negligence and claims for compensation are matters for the courts and cannot be determined by the Ombudsman.

The complaint

1. Mrs X complains for her son, Mr Y. She says the Council carried out a poor investigation, then failed to tell her of its decision not to prosecute the restaurant.
2. She says this has damaged the public trust in the Council. And the delay gave the restaurant owner to sell the business and avoid any civil action.
3. Mrs X wants:
• an independent review of the investigation
• a written apology about the failure in communications
• £6,000 compensation as she cannot make a civil claim against the restaurant

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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’. 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 could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint

(Local Government Act 1974, section 24A (6), as amended)

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How I considered this complaint

7. I considered:
• information provided by Mrs X with her complaint form; and
• copies of her complaints to the Council and its responses
8. Mrs X commented on the draft version of this decision.

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What I found

9. Mr Y has an allergy to peanuts. In August, he ordered a takeaway meal from a restaurant, explaining his allergies. After eating the meal, he suffered an anaphylactic shock and needed treatment in hospital.
10. The Council was notified of the incident and investigated. In November, it decided not to prosecute the restaurant and dealt with the case by providing advice and guidance to the business.
11. Mrs X chased the Council for an update. In January it advised her of the decision taken in November not to prosecute the restaurant owner.
12. In March, Mrs X complained to the Council, detailing her concerns about the quality of its investigation. She says an officer visited her at home and told her he had not carried out his job properly as he was experiencing personal problems.
13. The Council’s reply advises the investigating officer’s manager held five supervision meetings about the case. It confirmed it cannot prove that Mr Y’s meal was intentionally contaminated. It explained where it found sources of peanut from samples taken and that peanut butter is used only in one dish, which records show was not prepared on the day of Mr Y’s incident.
14. Mrs X says the Council is not required to prove deliberate or reckless contamination and should not have advised her so.
15. The Council also confirmed it obtained the opinion of an expert in allergen prosecutions. The expert was concerned about a previous history of unexplained coconut flour contamination, which would weaken a prosecution case as it introduced a potential source of contamination outside the restaurant kitchen.
16. The Council accepts the meal supplied to Mr Y contained traces of peanut. However, the legislation provides a defence if a person can show the offence occurred because of the act or fault by another party. If a person can show they had exercised due diligence and taken reasonable precautions to avoid the offence, then they are not guilty.
17. As the restaurant was a small independent business the owner would not be expected to have ingredients for testing. It would be possible for them to rely on the ingredients lists of products they use. They could expect pure coconut flour not to contain peanut.
18. Having considered information provided by Mr Y, expert advice, sample results and improvements made at the business premises the Council decided it would not prosecute. It would carry out unannounced visits to take samples, to ensure compliance.
19. The Council acknowledged it had not communicated with Mrs X as promptly as it should have. It apologised for this and for not managing her expectations of a prosecution as it should have done.
20. Mrs X escalated her complaint, again outlining her dissatisfaction with the investigation. The Council confirmed its manager for Business and Public Protection reviewed the case and is satisfied with the investigation made to try and discover the source of the peanut. It says it cannot prove that anyone had acted, recklessly or deliberately to contaminate Mr Y’s meal.

Assessment

21. As explained in paragraph 6, when the Ombudsman investigates, we look for fault causing injustice. Mrs X is unhappy with the Council’s investigation into the incident involving Mr Y and its decision not to prosecute. But even if there were faults or flaws in the Council’s investigation, they will not have caused Mr Y significant personal injustice. The injustice he suffered may have been caused by the actions of restaurant staff, but not the Council.
22. Mrs X is unhappy with the conduct of the investigation. However, it is unlikely we would question the professional judgment of the Council officers and the decision, having spoken to members of the business staff, taken samples, and sought expert advice, not to prosecute the restaurant.
23. Mrs X is seeking £6,000 compensation as she says the failure of the investigation meant a prosecution was missed. She also says the delay in responding to her concerns allowed the business owner to sell the restaurant, meaning that she could not make a civil claim.
24. In seeking compensation, Mrs X is effectively asking the Ombudsman to find the Council negligent. A claim about negligence is a legal matter which does not involve a council’s complaints procedure. Such claims should be referred to insurers as legal claims and where liability is denied the court is the body to which an affected person may take their claim. Where there is a remedy available through the courts the Ombudsman would expect the complainant to take the matter to that body where it is reasonable to do so. The Ombudsman cannot determine whether the Council has been negligent and if so whether damages or compensation should be paid.

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Final decision

25. I will not investigate this complaint. The Council has apologised for failing to communicate with Mrs X as it should have done. I consider this is a suitable remedy to this part of the complaint.
26. We are unlikely to find fault in the way the Council investigated the incident and further investigation is unlikely to lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman