Decision : Not upheld
Decision date : 09 Jan 2019
The Ombudsman's final decision:
Summary: The Authority was not at fault in its decision not to take enforcement action in response to a complaint Dr B made about a business. It properly considered the complaint but decided enforcement action would not be proportionate to the issue raised. As I have found no fault with how the Authority made its decision, I cannot question the decision itself.
- The complainant, whom I refer to as Dr B, complains that the Authority refused to take enforcement action against a business with which he was dissatisfied.
The Ombudsman’s role and powers
- 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)
- We cannot question whether an authority’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)
- If we are satisfied with an authority’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)
How I considered this complaint
- I considered information provided by Dr B and the Authority. I wrote to Dr B and the Authority with my draft decision and considered their comments.
What I found
- Dr B contacted the Authority in September 2018 and said he was unhappy with the service provided by a local business. He asked the Authority for the name of the business owner, and said the owner’s name was not displayed on the premises. He said the Authority should visit the business to either ensure it complied with its duties or to close it down.
- The Authority offered to write to the business and advise it of its duty to display its company name on its premises. However, it said it was not its role to provide the name of the business to Dr B. The Authority says it advised Dr B to contact the Citizens Advice consumer helpline at this point, which would record details of the issue he had with the business.
- Dr B said he did not want the Authority to write to the business, and said this would take too long. He said he needed the name of the business so he could pursue court action. He said he wanted the Authority to deal with the matter as a formal complaint.
- In response to Dr B’s complaint, the Authority said it could not act on every individual complaint it received. It said it now used an intelligence-led operating model which meant it now considered specific criteria – such as number of complaints and economic impact of issues raised – before deciding on enforcement action.
- The authority said the intelligence-led model means it prioritises action against businesses causing the most disadvantage to consumers. It said it had received no previous complaints about the business in question and therefore would not take further action.
- Dr B said the Authority should have acted on his complaint, and asked it to reconsider its decision at stage 2 of its complaints procedure.
- The Authority responded to Dr B, and said it had advised him to contact the Citizens Advice consumer helpline, which records the majority of issues raised about businesses on a national database, so authorities can use the data in intelligence-led operations. The Authority said Dr B had not contacted the helpline.
- The Authority repeated what it had said in its previous response, and said the issue Dr B raised – without complaints from other consumers about the same business – did not justify further investigation. It said it had offered to remind the business of its duties under the Companies Act, but Dr B had refused this offer. It told Dr B it would take no further action.
- The Trading Standards integrated operating model says that, while authorities previously used a ‘complaint-led’ approach to enforcement, the National Trading Standards Board supported a move to use intelligence to make a bigger impact on problems identified. The model does say, however, that there will be times when it will be vital to react to individual complaints.
- The Authority’s website says consumers should contact the Citizens Advice consumer helpline to raise issues and, in line with its intelligence-led operating model, the Authority will “look to address the issues that cause the highest levels of detriment to consumers and businesses”.
- The website says that, when considering whether to take enforcement action, the Authority will look at:
- The amount of money involved and the number of consumers or businesses affected;
- The vulnerability of the consumers;
- The level of risk to safety, public health and wellbeing; and
- The previous history of the business in question.
- The Authority has the discretion to take enforcement action against a business if it decides the action is justified. It takes an intelligence-led approach to enforcement, and collates information recorded onto a national database after problems have been identified by consumers (or other businesses).
- Although the Authority takes this approach, it can still act after receiving individual complaints if it considers such action appropriate and necessary.
- It is not the Ombudsman’s role to reconsider evidence which an authority has looked at in deciding whether to act in response to a complaint. However, authorities must fully consider complaints, and must explain why they have decided to act – or not to. If this does not happen, then we may find fault with an authority. If fault is identified which raises questions about a decision, then we may recommend that the authority reconsiders the decision.
- In Dr B’s case the Authority considered his complaint and advised him to contact the Citizens Advice consumer helpline, which records issues so authorities can consider them in intelligence-led operations. It does not appear that Dr B did this.
- Regardless of whether Dr B contacted the helpline, the Authority also considered whether direct action would be appropriate in response to his complaint. It decided that, as it was the only complaint it had received about the business in question, it would not be proportionate to use its resources by visiting the business premises.
- The Authority did, however, offer to write to the business to remind it of its duties under the Companies Act. Dr B refused this offer.
- The decision about whether to start enforcement action in response to Dr B’s complaint was for the Authority to make. It considered whether to use its powers but decided not to. It explained its reasoning fully to Dr B. I have found no fault with how the Authority made its decision, so I cannot question the decision itself.
- As a result, I have not found fault with the Authority.
- The Authority was not at fault in its decision not to take enforcement action in response to a complaint Dr B made about a business. It properly considered the complaint but decided enforcement action would not be proportionate to the issue raised. As I have found no fault with how the Authority made its decision, I cannot question the decision itself.
Investigator's decision on behalf of the Ombudsman