Summary: Mr C, a circus owner, says the Council discriminates against circuses or has a policy not to license circuses in its parks. He says this has caused him the injustice of lost business. The Council was not at fault. It did not discriminate against him and has no written policy against circuses though, if it did, this would not be unlawful.

The complaint

1. The complainant, who I have called Mr C, says the Council is at fault because:
1. It discriminates against circuses by refusing to allow them licences to perform in its parks; and/or
2. It operates a policy which:
1. unfairly prevents him from gaining a licence to perform in its area; and
2. is driven by revenue generation and ignores cultural issues.

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The Ombudsman’s role and powers

2. 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

3. I spoke to Mr C. I wrote an enquiry letter to the Council. I considered its response before writing my decision.
4. I sent my draft decision to the Council and Mr C and invited their comments.

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What I found

5. Mr C applied for a permit to put on a circus in late 2018. He received an email back from the Council which responded, saying it was ‘a very busy borough for events and we currently turn down a high number of requests for events each year based purely on our capacity to manage them and to avoid overuse of the sites which can host sizeable/more impactful events. 
6. Circuses are considered to be higher impact events, due to both the area of space required and number of days in situ. We have a limited number of sites that are suitable for higher impact events and the sites that may be suitable for circuses in particular are not available. In the wider context of the events programme, in our experience Circuses do not generate enough income to make business sense for our most useable sites.
7. Mr C complained to the Council. He said the Council had told him that it did not permit circuses because they did not generate enough revenue. This, he said, was unacceptable. He said circuses had been around for 250 years, the Council was denying its residents circuses by being greedy. He said it was discrimination against circuses.
8. The Council responded saying he had misrepresented the Council’s comments to him. It said: ‘The full context is that Tower Hamlets already has a high level of commercial activity and we have to make a judgement over new requests and the benefits they may bring to the borough. We could if we chose to have a much higher level of activity by accepting all approaches to us by third parties, including by various circus organisations, but we have to be circumspect about balancing much needed income generation and the access to open spaces by the public.  Our judgement in such matters is informed by a number of factors, which does include the level on income that might be generated’. 
9. Mr C escalated his complaint to stage 2 then came to the Ombudsman.

Was there fault causing injustice?

10. Mr C says he has applied to the Council for permission to put on a circus in one of its parks on several occasions over the last seven years without success. He says the Council has not granted any permits to circuses since 2012.
11. Mr C says Council officers tell him he should apply again and that he may be successful in future. However, he has come to believe the Council operates a policy which excludes or discriminates against circuses.
12. Mr C says Council officers have told him there is no room but says his circus requires only 0.01 hectares to operate and the Council has one park, Victoria Park, which is 86 hectares, and several others which could easily hold his circus.
13. He says he has also been told the event calendar is full and that circuses do not generate enough revenue. Mr C says, as a result of its policy against circuses, the youth in the Council’s area are missing out on much-needed entertainment.

Discrimination against circuses

15. Mr C says his circus has been discriminated against. The Equality Act 2010 prohibits discrimination against people with certain ‘protected characteristics’. These are:
1. age
2. disability
3. gender reassignment
4. marriage and civil partnership
5. pregnancy and maternity
6. race
7. religion or belief and
8. sex.
16. ‘Discrimination’ against anyone, or anything, for any other reason is not prohibited by the Act. Therefore, I do not find fault.

Policy against circuses

17. Mr C suspects that the Council has a policy against permitting circuses in its parks. He says the Council has a great deal of space, particularly in Victoria Park, where it could accommodate his circus and yet has not allowed any circuses since, at the latest, 2012. He says this is evidence of this policy.
18. The Council says it has no written policy. Applications are decided on their merits by its festivals and events team. There is no competitive tendering process other than for Victoria Park where the Council entered into a five-year contract with an event company to provide entertainments there in 2017.
19. The Council says there is no one reason why it has not permitted circuses since 2012. It has four sites which could accommodate them and different factors apply to each. The Council has to balance the need to raise revenue with the needs of the local community to use parks for leisure. It says it will consider any further applications from Mr C and any other circus owner in future on their merits.
20. The Council granted 43 licences last year for events in its parks. These ranged from music festivals with 40,000 attendees to smaller events for a few hundred people. Some were one-day events, one lasted 10 days with a long build and take down period. It says it also gains revenue from filming. It hosts community events. This creates a full events calendar. Contracts with some event organisers span several years. This further limits calendar space.
21. The Council says it ‘is entitled to manage its parks and open spaces as it sees fit. No…organisation has a right to hold events on council owned land…. We emphasise this is not a blanket ban but that we consider all approaches from the commercial sector when building a programme of events each year.

Decision

22. The Ombudsman makes his decisions on evidence and, in this case, there being no good evidence the Council has a policy to bar circuses, and because the Council denies it, I cannot uphold this part of the complaint.
23. In any event, if the Council had such a policy, I could not find fault. Mr C says the Council is ‘greedy’ but councils cannot be blamed for trying to make money.
24. Mr C says the Council is failing to support a historic British entertainment. This may be, but the Council has no duty to do so so cannot be at fault for that.

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Final decision

25. I have carefully considered the evidence and have reached a decision that the Council is not at fault. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman