Summary: Mr X complained about the Council’s decision to refuse to issue refunds to beach chalet users for the period between January and April 2021. The Ombudsman did not find fault with the Council’s decision-making.

The complaint

1. Mr X complained about the Council’s decision to refuse to issue refunds to beach chalet users for the period between January and April 2021.
2. Mr X said he could not use his beach chalet during that time due to the COVID-19 restrictions in England.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
4. 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)
5. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

6. As part of the investigation, I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• Council owned beach hut or chalet licence agreement.
• Coronavirus Act 2020.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Beach hut and chalet licence agreement

8. Licensees are responsible for an annual fee, payable to the Council.
9. The licensee is still responsible for the licence fee even where they cannot access their hut or chalet due to an unforeseen event. If the licensee cannot access their hut of chalet for more than 28 days they may ask for a refund. However, refunds are at the Council’s discretion.

COVID-19 restrictions

10. During full national lockdowns people were not allowed to leave their home without a ‘reasonable excuse’. Whilst legislation did not define what was a ‘reasonable excuse’, it did give examples such as (in the first lockdown) shopping for food and medicine, exercise alone, going to work or volunteering that couldn’t be done from home.
11. A Government announcement about the January 2021 COVID-19 restrictions in England gave guidance about the type of circumstances in which people might leave their homes. The guidance included:
• Shopping for basic necessities, for you or a vulnerable person.
• Going to work, or provide voluntary or charitable services, if you cannot reasonably do so from home.
• Exercising with your household (or support bubble) or one other person, this should be limited to once per day, and you should not travel outside your local area.
• Meeting your support bubble or childcare bubble where necessary, but only if you are legally permitted to form one.
• Seeking medical assistance or avoid injury, illness, or risk of harm.
• Attending education or childcare.

What happened

12. Mr X rents a beach chalet from the Council for which he pays an annual fee.
13. Following the first COVID-19 national lockdown in England, which started in March 2020, the Council decided to issue refunds to beach hut and chalet licence holders because they could not access the facilities.
14. In December 2020 and January 2021, the Government announced more COVID-19 restrictions in England. It told people they could again only leave their home for essential reasons, advising this could include exercising outdoors locally. Indoor tourism and leisure facilities were closed, but beaches remained open.
15. Mr X contacted the Council on 16 February 2021. He referred to refunds the Council gave in 2020. He asked the Council to confirm it would consider issuing refunds again for the latest COVID-19 restrictions.
16. The Council said current Government guidance encouraged the public to exercise. It said the use of beach huts and chalets was in keeping with Government guidance and it was not stopping access. It would therefore not issue refunds to licensees.
17. Mr X said another licensee was told beach huts and chalets were not legally accessible during the current restrictions. He said on his reading of the Government’s guidance he decided not to use his chalet. He said advice from the Police and a local councillor supported his view and the Council had not given licensees any advice.
18. A local councillor (Councillor A) contacted the Council on 25 February, on behalf of Mr X and another beach chalet licensee. Councillor A said the Council’s beach office turned someone away when they tried to visit their beach chalet. He acknowledged the Council had since confirmed the beach office’s advice was wrong, and people can access beach huts and chalets. However, he said this appeared contrary to Police advice, as they told another licensee they would likely be fined for visiting their chalet.
19. The Council told Councillor A it would deal with each refund request on its own merits.
20. The Council contacted Mr X on 5 April. It said Government advice for 2021 was different to March 2020 as people could go out and were allowed to visit the beach. It said people had been visiting the beach and using their beach huts and chalets. The Council said it therefore would not offer refunds.
21. Mr X asked the Council to re-consider his complaint on 18 April. He said the Council did not contact licensees about access to beach huts and chalets at the start of the restrictions in January 2021. Having read the Government guidance, Mr X said he was in no doubt it would breach the rules, so he did not visit. He said the beach office also initially advised beach huts and chalets must not be used during the lockdown.
22. Mr X asked the Council to confirm:
• Why it considered beach huts and chalets were exempt from the Government regulations.
• Why it did not tell beach hut and chalet licensees from the outset.
• Given the beach office is the first point of contact for users, how were they not aware of the Council’s stance.
• Why it did not contact licensees when it found out the beach office had been giving the wrong information.
23. The Council sent its final response to Mr X’s complaint on 30 April.
24. It apologised for the wrong advice given by the beach office. It said the member of staff involved was corrected by the Council’s head of parks and foreshore.
25. It said its stance was that Government advice from March to May 2020 was different to the advice in subsequent lockdowns. The March 2020 advice was that the public should not leave their homes unless it was essential. That is why the Council gave refunds for that period. Subsequent Government advice was that people could leave their homes for unlimited periods and visiting the beach was allowed. It said that meant it could not continue to offer COVID-19 related refunds.
26. The Council said it decided not to close access to beach huts and chalets. It left it to licensees to decide whether to visit them or not. It said it was the Government’s expectation that individuals would make decisions for themselves.
27. The Council said the licence agreement is clear it has no obligation to refund tenants for lack of access due to an unforeseen event. Refunds are at the Council’s discretion. It said Government guidance was clear that beach access and outside exercise was permitted in later lockdowns and so further refunds would not be applicable.
28. Mr X brought his complaint to the Ombudsman on 20 May 2021.

Response to enquiries

29. The Council told me it received no guidance from the Government about the extent to which people could leave their homes, for how long, or for what activities. The Council interpreted that the same restrictions would apply from January 2021 as in the Christmas 2020 and New Year 2021 period.
30. The Council decided beach huts could remain open because it considered it was a low-risk activity and there was unlikely to be social crowding at that time of year.
31. The Council said it did not see a need for a heavy-handed approach, and coastal wardens could deal with inappropriate gatherings.
32. The Council said it did not issue any refunds to beach hut owners or occupiers because most live in the local area. The advice the Council received about travelling time for exercise was that it was limited to an hour. That was within the limits for most beach hut owners and occupiers.
33. The Council did not receive any specific instructions from the Government to close its facilities, like it did during the first lockdown in March 2020. Due to the number of facilities the Council provides, it did not feel it was reasonable to use its limited resources to contact beach hut licensees, or all other public facility users, every time restrictions changed.

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Analysis

34. At the time of the restrictions in January 2021, people could go out to exercise and could visit outdoor public places, including beaches.
35. I appreciate Mr X’s concern that visiting his chalet may have been against the rules, because beach huts and chalets are not generally used for exercise, nor are they an outside space.
36. However, that is a matter of interpretation. It is not the Ombudsman’s role to interpret the guidance. Our role is to consider whether there was fault in the Council’s decision-making.
37. The Council took the view the guidance at the time did not ‘ban’ people from using beach huts or chalets. The guidance confirmed beaches remained open, and I have not seen specific guidance which said beach huts or chalets should have closed.
38. Mr X is unhappy the Council did not tell licensees it intended to keep beach huts and chalets open. The Council did not consider it was a reasonable use of resources to tell people about facilities remaining open, particularly where rules and guidance often changed. In the circumstances, I do not consider the Council was at fault.
39. I can understand why Mr X thought the rules might prevent him visiting his beach chalet, but he did nothing to clarify the situation with the Council at the outset. He assumed it was unlawful and then later asked for a refund.
40. While the Council’s licence agreement states it will consider refund requests in similar circumstances to these, it does not say the Council will or must issue refunds.
41. The Council is under has no obligation to issue a refund where someone wrongly assumes its facilities are closed.
42. The Council gave due to consideration to Mr X’s request for a refund. However, it decided not to issue any refunds while licensees could still access their beach huts and chalets. I have not seen evidence of fault in that decision.

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Final decision

43. I have completed my investigation. The Ombudsman did not find fault with the Council’s decision-making.

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Investigator's decision on behalf of the Ombudsman