Decision : Upheld
Decision date : 17 Jan 2018
The Ombudsman's final decision:
Summary: The Ombudsman found some fault by the Council on Mr D’s complaint that it failed to take appropriate enforcement action and protect the public from a local electronics repair firm after receiving reports about poor service. While the Council received and considered hundreds of reports about this firm, the evidence does not show what happened with its investigation during a period of 12 months from April 2016. The delay caused no significant injustice to Mr D.
- Mr D complains the Council failed to take appropriate enforcement action and protect the public from a local electronics repair firm against which it received hundreds of reports, including his own, about poor service; as a result, he was put to a lot of time and trouble pursuing his complaint which he believes has a wider public interest.
The Ombudsman’s role and powers
- If we are satisfied with a council’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)
- 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)
How I considered this complaint
- I considered all the information Mr D provided, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I was unable to send him a complete copy. This is because part of the response contains third party information which needs to remain confidential. I also sent a copy of my draft decision to Mr D and the Council. I considered their responses.
What I found
- Mr D accepts his dealings with an electronic repair shop was minor. Having sent an electronic device to the shop for a 24-hour diagnosis, he asked for its return and the return of a deposit when he heard nothing from them. Searching the internet revealed a website where consumers gave poor reviews of the shop.
- In September 2015, he complained to the Council’s Trading Standards Department about the shop. After a Freedom of Information request, he discovered the Council received 1,000 reports about the shop since its opening in 2012. The reports included damage to devices, theft, and money wrongly taken from credit cards.
- He compares the Council’s apparent lack of decisive action with another council in a similar situation which acted, resulting in a firm’s closure within weeks. Since his complaint, he argues the Council did very little. It was only after contacting the Ombudsman that the Council began asking for witness statements from those affected.
- The Council received 191 reports about the shop in 2015 and began investigations before Mr D sent his report. It sent 90 questionnaires to those who complained about the shop, including one to Mr D. Of these, 30 were returned. Mr D’s problem with the shop was resolved swiftly although the Council was looking at the shop overcharging and failing to declare the true costs involved. Mr D took on the role of advocate for those affected by the shop. The Council asked him to provide a witness statement in March 2016 but says he failed to respond. After this point, the Council reduced its correspondence with him.
- The Council decided it had several enforcement options including:
- Criminal proceedings; and
- Seeking an enforcement order or undertaking under the Enterprise Act 2002. The Council decided to pursue this option. This is because most of the reports were civil in nature, rather than criminal, and this order is enforceable through the courts. In addition, the Police received reports of fraud by the shop.
- The Council did not raise Mr D’s individual complaint with the shop. This is because it is policy not to raise them where they are of low value and generally civil in nature. The general issues he raised, along with the other reports were, and continue to be, investigated.
- In April 2017, the Council decided Mr D may help its investigation. This is because he could provide a statement about why he set up a victim support group, what it sought to achieve, the experiences of the group, and whether they were linked to breaches officers were considering.
- The Council explained:
- it was not always possible to provide updates to Mr D apart from in general terms. This was because of the risk of posting information about it on social media, for example, which could undermine its investigations;
- this is a complex investigation of multiple breaches;
- there are financial risks of rushing an investigation;
- its awareness of all the issues developed over time; and
- many, if not all, of those affected live outside Salford.
- The Council’s ‘Enforcement and Prosecution Policy: Environment and Community Safety’ sets out the general principles for enforcement and prosecution. The aim of enforcement is preventative or to take remedial action to ensure compliance with legal requirements. The preferred method of getting compliance is ‘by working together with those who are regulated’. When considering the most appropriate course or type of action, officers considered several factors including the seriousness of the alleged offence, previous history, consequences of non-compliance, the effectiveness of various enforcement options, and the public interest.
- Formal enforcement action, or a prosecution, is justified where the offender was engaged in conduct detrimental to the public interest, for example. Enforcement needs to be: proportionate to the risks posed and seriousness of the breach; consistent; transparent, which means helping those regulated understand what is expected of them and what they need to do; and targeted, which means directed mainly at activities likely to give rise to the most serious breaches.
- The Council decided to act against the shop under the Enterprise Act 2002. This Act requires ‘consultation’ with the shop (section 214). The aim of this includes getting the infringement to stop and making sure it is not repeated. The Council confirms it is still proceeding with its investigation.
- The evidence shows:
- 2015: September: Mr D contacted the Council about the shop. Officers wrote to him explaining the Council could not investigate each individual complaint but his information might help its investigation. This might take many months to complete. It asked him to complete a questionnaire. It warned it would not ask everyone to provide a witness statement. Nor would it be possible to keep him updated on all aspects of its investigation;
- October: The Council sent him an update. This told him it had sent several questionnaires to complainants and extended the deadline for their return. Officers were reviewing the responses;
- 2016: January: In response to his email, the Council told him investigations continued but could not give full details because of the risk of prejudicing future actions;
- March: The Council sent Mr D another email. This gave him an update. It asked whether he was prepared to give a witness statement;
- April: An email sent to him refers to a discussion with him about providing a witness statement;
- July: Mr D chased the Council about progress
- August: The Council gave Mr D an update saying they are working on getting witness statements.
- 2017: April: An officer contacted Mr D to discuss investigation and current position. He agreed to provide a witness statement. There was correspondence with him about what was needed in the statement.
- May: Statement from Mr D received.
- June: The Council amended the statement and sent it to Mr D. He sent it back later that month.
- On balance, I am satisfied there is evidence of the Council progressing its investigation between September 2015 and March 2016. I found no fault on this part of the complaint.
- While I appreciate the Council received 304, 231, and 90 reports in 2015, 2016, and 2017, there is no evidence showing what the Council did between April 2016 to April 2017 when it asked him again about providing a witness statement. I note Mr D appears not to have responded to the Council’s approach about him providing a witness statement in March/April 2016. In the absence of evidence about what it was doing during April 2016 to April 2017, I found fault on this part of the complaint.
- I am not satisfied the delay caused Mr D a significant injustice. This is because I understand the shop refunded his money shortly after he approached it. In addition, the Council’s investigation was not based solely on his report.
- I have read our internal guidance on remedies.
- The Council agreed to send Mr D a written apology within 4 weeks of the final decision on this complaint for the delay identified.
- The Ombudsman found fault on Mr D’s complaint against the Council.
Investigator's decision on behalf of the Ombudsman