Summary: Mr X complained about the Council’s failure to take enforcement action against a manufacturer of canine ice cream selling an unlicensed product. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault which has caused injustice to Mr X.

The complaint

1. The complainant, whom I shall call Mr X, complains about the Council’s failure to take enforcement action against a manufacturer selling canine ice cream without a licence to do so. He says when he tried to carry out a similar operation in his own area the local authority prevented him from doing so and would not issue a licence. He says he has lost a potential market because of the Council’s failure to take action.

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The Ombudsman’s role and powers

2. 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 would find fault, or
• the fault has not caused injustice to the person who complained, or
• it is unlikely further investigation will lead to a different outcome.

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

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How I considered this complaint

3. I have considered all the information which Mr X submitted with his complaint. I have also considered the Council’s response and Mr X has commented on the draft decision.

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What I found

4. Mr X asked his local authority for a licence to produce ice cream suitable for dogs. The Council told him that in his present facilities he could not be granted a licence. It quoted guidance from the Food Standards Agency (FSA) and the Animal and Plant Health Agency(APHA) which are government bodies concerned with food hygiene and animal health protection .
5. Mr X subsequently discovered that South Gloucestershire Council had permitted a manufacturer of a similar product to operate without being licensed to do so. Mr X complained that the Council should have taken similar enforcement action to that which his own council had threatened. Failure to do has resulted in a rival company capturing a market which he was unable to exploit.
6. The Council says although one batch of ice cream may have been marketed it had subsequently prevented further manufacture and the operator had applied for a licence. Its investigation involved the FSA and the APHA and these bodies had taken the lead with regard to licensing the product. Enforcement was not appropriate whilst the licence application was being considered.
7. Mr X does not live within this Council’s jurisdiction. His application was to his own authority and was not affected by this Council’s actions. As both councils involved acted on advice from the same government agencies, they cannot be responsible for any inconsistency in approach by those agencies.
8. This Council acted correctly according to government advice and its actions cause no direct injustice to Mr X. We cannot consider the actions of his own council because his complaint was not made against it.

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Final decision

9. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault which has caused injustice to Mr X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman