Essex County Council (18 013 663)

Category : Environment and regulation > Trading standards

Decision : Upheld

Decision date : 04 Apr 2019

The Ombudsman's final decision:

Summary: The Council failed to communicate properly with Mr X and sent his personal information to someone else. It will apologise to Mr X and pay him £250. The Council did not investigate Mr X’s complaint of unfair contacts terms. The Council will now investigate this complaint and pay Mr X £250 for its failure to investigate earlier.

The complaint

  1. The complainant, whom I will call Mr X, complains the Council’s Trading Standards acted unfairly and unreasonably following a complaint he made about a company he licences a caravan pitch from. He says the Council:
  • Unreasonably failed to prosecute the company.
  • Delayed in responding to him and did not keep him informed
  • Sent his personal financial documents to someone else.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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)

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How I considered this complaint

  1. I considered the complaint Mr X made and discussed it with him. I asked the Council for its response and other information. I considered what it sent.
  2. Mr X and the Council had the opportunity to comment on a draft version of my decision. I considered the comments they provided before I made a final decision.

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What I found

  1. Trading standards enforce approximately 250 pieces of legislation. This includes consumer legislation and false descriptions. Trading standards acts as law enforcement, it does not act in civil disputes for a consumer. Its role is public protection. It does not have to prosecute a trader even if the trader has committed a criminal offence and could be convicted of this. It can decide to give a warning or take no action.
  2. At first, a consumer makes a complaint to the Citizens Advice Bureau (CAB). The CAB decides if it should pass the complaint to trading standards.
  3. What trading standards will do can vary between authorities.
  4. Essex County Council publishes its trading standards enforcement policies on its website.
  5. The Council’s policy is it targets its resources on where it will have the greatest impact. When considering enforcement action, it considers what is a proportionate action and how it can change the behaviour of the offender and deter any future non-compliance.
  6. When deciding if it should prosecute it considers this in two stages. The first stage is does it have enough evidence for a realistic chance of conviction. It will also consider what the offender’s defence is and how this could affect the chance of a conviction. It then goes on to consider if a prosecution is in the public interest. It will consider several issues including past offending and possible future offending and any risk to the public.
  7. It says it will acknowledge e-mail enquiries in one working day. When the CAB refers a complaint, and has committed trading standards to contact the complainant, it will acknowledge this in four working days. It says it will keep those involved informed of progress and, where appropriate tell them the outcome.

What happened

  1. In Summer 2016 Mr X bought a caravan on a site owned by the company. He says the company told him he could have unrestricted stays from 1 March to 30 November and it has applied to extend its licence. Mr X signed a contract with the company that says he entered the contact based on what the contract said and not what company orally told him.
  2. In 2017 Mr X paid the company £999 site fees for nine months occupancy.
  3. In November 2017 the planning authority, the District Council, served beach of licence notices on the site residents. This said the licence allowed full occupancy from 15 March to 31 October and some weekends in November, December and early March. The District Council started a prosecution against the company.
  4. The company immediately applied to the District Council for planning permission for a licence from 1 March to 31 November.
  5. In November 2017 nine people complained to the CAB. The CAB referred the complaints to Trading Standards.
  6. In December 2017 Mr X complained to the CAB. The CAB referred the complaint to Trading Standards. The CAB referral says: “without commitment”. The Council says this means the CAB told Mr X the Council would only contact him if it intended to take further action or needs more information. It said it did not need information from Mr X and so did not contact him.
  7. In December Trading Standards started to consider if this was a complaint it should give resources to and investigate. In February 2018 it decided it should and started a full investigation, including site visits, interviews with company staff and liaison with the District Council.
  8. The Council contacted 5 complainants to get statements from them. It did not contact Mr X.
  9. The District Council refused the company’s planning application as it did not have enough ecological information. The company submitted a new application in April 2018.
  10. In May 2018 Trading Standards’ Officers attended a meeting at a complainant’s home (Ms Y). Mr X went to the meeting. Mr X says at this meeting an Officer said she had overwhelming evidence to support a prosecution and to succeed with an action under the Proceeds of Crime Act to get compensation for the victims. The Officer’s notes of the meeting say she told attendees she was investigating the company for mis-selling as there was evidence of this. The notes say she might need to interview the company and the Council would only prosecute if the case met its policy. The notes say Mr X asked about the Proceeds of Crime Act and she replied the Council would look at this if it had a successful prosecution.
  11. The Council took financial documents from complainants, including Mr X.
  12. The Council now took details from Mr X, intending to draft a statement.
  13. On 12 June Mr X contacted the Council for an update. It told him it was still working on the statements.
  14. On 17 June Mr X emailed the Council for advice on a letter he had received from the company. The Council did not respond. The Council says the letter the company sent Mr X was about a civil matter it could not help with. It accepts it should have told Mr X this.
  15. On 1 August 2018 the Council interviewed a representative of the company under caution. The representative gave the Council the company’s defence and evidence to support this. The evidence showed the seasonal opening had remained the same from when the site opened through all previous owners and there was confusion about whether the District Council accepted this.
  16. On 7 August Mr X emailed the Council for an update as he had to decide whether to renew his pitch fees. The Council replied on 9 August. It said it now had the company’s defence and needed to decide what to do. The Council said it would let Mr X know as soon as it had made a decision. It said its decision did not affect whether Mr X renewed his pitch but suggested he contacted the District Council for an update on the licence conditions.
  17. The company increased its site fees in 2018. Mr X decided because of this and the continuing dispute he would not renew his pitch and would sell the caravan. He sold it at a large loss.
  18. On 5 September the Council decided not to prosecute as the District Council suggested it would grant planning permission for the extended opening.
  19. On 4, 8 and 28 September Mr X asked the Council for an update.
  20. On 1 October the Council told Mr X it had ended its investigation of the company because of the information it provided in its defence. The Council said it had not been aware of this before the interview on 1 August. Mr X replied he wanted to know what the defence was. He questioned ending the investigation when the District Council planned a prosecution. He also asked the Council what it was doing about the unfair clause in his contract saying he could not rely on what the company told him. He said he raised this in the meeting in May.
  21. The Council replied on 4 October. It said it could not give specific details of the defence but the Council made its decision in line with its policy. It was satisfied there was not enough evidence to give a realistic prospect of a conviction and it was not in the public interest to go ahead. It said it was monitoring what the company did and future complaints against it. It said it would also find out what decision the District Council made. The Council kept the case open awaiting the District Council’s decision.
  22. On 10 October 2018 the District Council gave the company planning permission to allow occupation on site from 1 March to 30 November each year. It dropped its prosecution. Essex County Council closed its case against the company.
  23. The Council sent Mr X’s documents to Ms Y, who returned them to Mr X.
  24. Mr X made a complaint about the Council’s investigation and breach of Data Protection.
  25. The Chief Executive replied to Mr X on 16 November. He gave the history of Trading Standards’ involvement. He said the company marketing the site as available 1 March to 30 November before its licence allowed this might be a criminal offence. He said, however, because of what the Council found out during the investigation it decided not to continue the investigation. The Chief Executive accepted the Council should not have sent Mr X’s documents to Ms Y. He apologised for this.
  26. Mr X asked the Council to reconsider. He also said the Council had not addressed his complaint about an unfair contract clause. The Chief Executive gave a further explanation of the Council’s actions. He said the Council would raise the potential unfair contract complaint with the company. He acknowledged this was possibly an unfair term and the Council would contact the company to ensure its future contracts are fair.

The Council’s response to us

  1. The Council has provided me with full reasons and evidence to support its decision not to prosecute the company for mis-selling.
  2. I asked the Council what action it had taken about the unfair contract clause complaint and for evidence of this. The Council originally only said the matter is ongoing.
  3. The Council has now provided further information. It says it believes it discussed the potentially unfair clause with company’s solicitor on 15 August 2018. It has not provided a record of this. It says it sent a follow up email on 19 February 2019 and a chaser for a response on 13 March 2019. It says the company has now responded. The Council says it will continue to pursue this with the company. It says at present it considers the clause potentially unfair and will work towards getting it changed or removed.
  4. The Council says it did not contact Mr X in February 2018 when it decided as it does not contact all who have complained. It says it decides if it only needs a sample of complaints to proceed. It says there will always be some complainants it does not contact and Mr X was in that category
  5. The Council accepts it did not contact Mr X until 1 October to say it had decided not to prosecute. It says the Officer involved was away from the office for seven working says between 5 September and 1 October.

Analysis

  1. The Council was not responsible for Mr X’s decision to sell his caravan and the loss he suffered from this.
  2. It is for the Council to decide if it will prosecute for a potential breach of consumer legislation. The Ombudsman has no right to criticise the Council if it took the decision properly. If there was fault in the way the Council considered a prosecution, the Ombudsman can only ask the Council to reconsider. In this case I have no grounds to ask the Council to reconsider. It has provided full reasons and supporting evidence. It took the decision in line with its published policy. The Council was not at fault when deciding not to prosecute.
  3. Even if the Council was positive about prosecuting the company in May, as Mr X says, it must keep this under review. When the Council got new information from the company in August it had to consider this and the effect this had on the chances of a successful prosecution. The Council could change its mind when it received the new information.
  4. The Council is at fault for its failure to communicate property with Mr X and keep him informed.
  5. The Council says it will contact a complainant if it intends to take action or needs more information. In February 2018 the Council decided to take action but did not contact Mr X. It originally said it did not contact Mr X about his complaint as it did not need information from him. The Council has now added it will only contact a proportion of complainants to gather information. If the Council has a complaint and had decided to take action it should tell the complainant this even if it does not want information or a statement from that complainant. To not tell a complainant what the Council intends to do is unfair to the complaint, who if left wondering what has happened. It also means the complainant has no opportunity to offer evidence to the Council that might be important to the investigation.
  6. The Council did not respond to Mr X’s email of 17 June following a letter to him from the company. The Council accepts it should have told Mr X it could not help him.
  7. On 9 August the Council told Mr X it would let him know as soon as it had made a decision on future action. On 5 September it decided not to prosecute. It did not update Mr X who sent three requests for an update before the Council responded in October. The Council says in part this was due to officer absence. The Council should have at least acknowledged Mr X’s emails and given some indication when it would respond.
  8. The Council caused injustice to Mr X through uncertainty and frustration. If the Council had communicated properly with Mr X he may have found it easier to accept its decision not to prosecute.
  9. The Council is at fault for sending Mr X’s personal information to Ms Y. The Council had apologised for this but has not remedied the distress this caused him.
  10. The Council is at fault for its lack of action and information on Mr X’s complaint about an unfair contract term. Mr X complained in Summer 2018. The Chief Executive told Mr X in November 2018 what action it would take. The Council only contacted the company after Mr X complained to the Ombudsman. This delay and lack of information caused further injustice in time, trouble and frustration. It also means the Council lost an opportunity to restore some of Mr X’s trust in its actions.

Agreed action

  1. To put matters right for Mr X the Council has agreed that within one month of my final decision it will:-
  • Apologise to Mr X.
  • Pay him £100 for the distress caused by sending his personal information to another person.
  • Pay him £150 for the frustration he suffered because of the Council’s failure to communicate properly with him.
  • Pay Mr X a further £250 for its delay in taking action on his complaint of an unfair contract clause.

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Final decision

  1. The Council is at fault because of poor communication with Mr X and because it sent his information to someone else. It caused Mr X injustice. The Council has agreed to provide a remedy for this. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman

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