Summary: Business Y complained about how the Council carried out food safety inspections in 2024. We ended our investigation into the complaint. The key issues in the complaint are closely linked to ongoing court action, so it is not appropriate for the Ombudsman to investigate them. An investigation by the Ombudsman of the other issues the Business complains about would likely not lead to a different outcome.

The complaint

1. Mr X, on behalf of Business Y, complains about how the Council carried out food inspections and testing of food samples from the Business in early 2024. He says:
• Council officers were inadequately trained and did not have the right knowledge;
• the Council made errors when it took and tested samples of food from the Business; and
• the Council did not correctly interpret the results of testing.
2. As a result, Mr X says the Business agreed to close for a period of two weeks, which caused a loss of income and reputational damage, with other disruption and inconvenience over a longer period of time.
3. He wants the Council to provide him with evidence of the qualifications of the officers concerned, compensation for the businesses losses and for the Council to make improvements to its practices.

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The Ombudsman’s role and powers

4. We investigate 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 continue an investigation if we decide:
• we could not add to any previous investigation by the organisation; or
• further investigation would not lead to a different outcome; or
• we cannot achieve the outcome someone wants; or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. We have the power to start or end an investigation into a complaint about actions the law allows us to investigate. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been mentioned as part of the legal proceedings regarding a closely related matter. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended, section 34(B))

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How I considered this complaint

6. I considered:
• the information provided by the Business;
• information provided by the Council; and
• the legal Ombudsman’s powers and duties
7. The Business and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Background

8. Business Y operates a food business in the Council’s area.
9. The Council carried out unannounced and announced inspections of the business in early 2024. During some of those inspections, the Council took samples of food for laboratory testing.
10. The testing showed the presence of potentially harmful bacteria and the Council agreed with the business it would close while remedial work was carried out.
11. The Council carried out further visits later in 2024, as it still had concerns about food safety. As a result of those visits, the Council issued several legal notices to the business, and started court action, which the Business responded to.

Ending my investigation

12. I have ended my investigation into the Business’ complaint for the following reasons.
13. The notices the Council sent the Business and the resulting court action mean the question of whether the Business complied with food safety requirements now falls to the Magistrate’s Court to decide. In the Business’ response to the Court, it referred to and questioned the Council’s test results from early 2024. If the Business had other reasons for disputing those results, it could also present that evidence for the Court to consider.
14. The courts have made it clear that the Ombudsman should not conduct an investigation which might trespass in any way on the jurisdiction of the courts of law. (R v Local Commissioner etc, ex parte Bradford MCC [1979] QB 287).
15. I consider the Business’ complaint that the Council made errors in how it sampled, tested and interpreted results of the testing are so closely linked to the issues before the Magistrate’s Court, that it would not be appropriate for the Ombudsman to investigate them.
16. In its final response to the Business’ complaint, the Council accepted its communication and engagement with the business had been poor. It apologised for this and offered a symbolic remedy of £500. I do not consider an investigation by the Ombudsman of this part of the complaint would achieve a significantly different outcome.
17. The Council has also produced an improvement plan for issues it identified during its investigation of the Business’ complaint. It is unlikely the Ombudsman could add to the findings of the Council’s investigation into any needed improvements.
18. Mr X says the Council’s actions caused the Business a financial loss. Deciding about whether an organisation has been negligent or breached a statutory duty usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings. In addition, only a court can decide if an organisation has been negligent or breached a statutory duty and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
19. I cannot decide whether an organisation has been negligent or breached a statutory duty and have no powers to enforce an award of damages. So, I would usually expect someone in the Business’ position to seek a remedy in the courts, directly or through its insurers. I consider it is reasonable to expect the Business to use or to have used the court if it considers the Council caused it a financial loss.

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Final decision

20. We have ended our investigation. The key issues in the complaint are closely linked to ongoing court action, so it is not appropriate for the Ombudsman to investigate them. An investigation by the Ombudsman of the other issues the Business complains about would likely not lead to a different outcome.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman