The Ombudsman's final decision:
Summary: Mr C says the Council has not justified its decision to provide one fitness contract in several of its parks, Mr C is passionate there should be more variety of fitness activities available. There is no fault in how the Council made its decision, despite Mr C’s strong views to the contrary. The Council will keep fitness licensing in parks under review.
- The complainant, who I will call Mr C, says the Council has not justified its decision to provide one fitness contract for several of its parks. This does not accord with the aim to improve the health and well-being of the city. The Council is limiting the fitness choices available to its citizens by only providing one type of fitness session in the park, rather than a variety such as boot camp, yoga, and buggy fit. Mr C says the parks are large enough to take more than one provider, the Council could issue licenses for different days of the week, different time slots, or different areas of the park. Mr C says the large fee and two-year contract is off-putting, especially for smaller or start up providers, so limits genuine choice.
- Mr C says it feels like the Council is locking down the parks to benefit one company, as the same company has had the contract for years and was told if they paid double the fee the park would be exclusively for them. Mr C offers free fitness sessions and is disappointed he cannot offer this in certain public parks because of the Council’s policy. Mr C’s mental health has suffered because he could not continue offering his fitness sessions, which also had a social aspect. Mr C wants the Council to scrap the sole rights deal and promote more variety. Mr C is passionate about the health and well-being of his local community.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I considered information provided by Mr C, including during a telephone conversation. I considered information provided by the Council in response to my enquiries. I considered information available on the ‘Hull Culture and Leisure’ website.
- Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- In 2015 the Council set up a Limited Company called Hull Culture & Leisure Ltd (HCL). HCL develops and delivers services for the Council. Relevant to this case is its responsibility for managing parks.
- Where someone wants to run a business from a park, they need a licence from HCL to do so.
- Mr C contacted the Council with concerns that one vendor had sole rights to run a fitness business in Park C. The Council investigated the concerns under its whistle-blower policy. The Council found that a lack of formality and up-to-date documentation created conditions where malpractice could be wrongly inferred. In simple terms, the Council had made an agreement with one vendor to pay double the annual charge to have exclusive rights to Park C. There was no formal policy to support this, the agreement was not properly documented, and had not been reviewed so had continued for several years.
- The Council found this situation was not caused by an abuse of position and that officers had acted in good faith. The Council made recommendations on how it could put the situation right, including:
- Document a Parks Strategy, to include the role of Commercial Vendor arrangements across the Parks, to support the “diversity of activities” policy and indicate how often the arrangements are reviewed.
- Draft Commercial Vendor policy and procedures, to establish the licensing arrangements on a more formal footing.
- Additional payments for exclusive rights to cease or become regularised through the policy.
- If exclusivity is to continue, the definition of exclusivity must be clarified. Arrangements must be time limited to prevent a perpetual monopoly arising. The policy also needs to guide the allocation of any exclusive rights if competing parties bid when they come up for review.
- Management checks to be undertaken periodically to ensure that Vendor agreements, insurance documents and payments are up to date.
- HCL has now produced a new policy. This provides for one license per park (including Park C) for outdoor fitness and boot camp provision.
- Mr C says this does not allow any variety, and therefore does not accord with the published aim to improve the health and well-being of the city. The boot camp provision on offer might not be the exercise some people wish to do, or people might not be available on the nights or times it is offered.
- The Council explains there is no clear market information available of the demand. It started with one licence for each of the larger parks, so seven licences available. The Council says offering more than one licence would mean licence holders chasing the same limited number of local users and would contribute to making busy parks even busier. The Council explains other activities are on offer in the parks, including Park C, which do not need a licence.
- The Council does not want its parks overrun by commercial activities and events and needs to balance that against the everyday enjoyment of the park itself.
- The Council explains anyone can train free in the parks, so long as the necessary regulations and safety requirements are met. However, if the trainer charges users, then they would need a licence. The vendors licence is only for commercial activities, and the Council says it compliments a much wider range of activities that take place. The Council will keep it under review and may consider offering a licence for boot camp type activity and a licence for yoga type activity to widen the options.
- The Council decided to offer the licence for two years, based on one year being not enough for the successful bidder to establish themselves and three years seeming too long to allow genuine competition. The current provider can extend the licence after the two years but can also drop out within the two years.
- The Council based the cost of the licence on the existing pricing. The Council says it works out as £1.75 per person per session based on 10 people in a class. The Council considered this was in line with fitness classes in its leisure centre and decided that was a reasonable base price. The Council says Mr C is the only person to raise the cost of the licence as an issue.
Was there fault causing injustice?
- I now must consider whether there was fault by the Council which caused Mr C an injustice. If I find there was fault causing injustice, I will recommend the steps I think the Council can take to acknowledge that and prevent future problems.
- There was fault in the past where the Council allowed an informal situation to continue, that was not in line with any policy. The Council accepted this error and took steps to formalise the commercial vendor licence for fitness activities in the parks. This investigation is looking at how the Council decided the new policy.
- The Council has used knowledge of existing provision to influence its decision making, as that was the only evidence it had of the current demand and costings. This undoubtedly would serve as an advantage to the existing supplier who has a client base and knows they can meet the cost, but I cannot say it was fault of the Council to use that information as it was the best it had at the time. The Council also rationalised that it was reasonable on the basis of its charging in leisure centres.
- I take on board Mr C’s views that a wider variety of activities could be offered if more than one licence were available, I find no fault in the Council’s decision that there is a balance to be had of not over relying on commercial activities within the park. Other activities are available such as outdoor gym equipment, Park Run and Fitmums and friends. So, there are a variety of different fitness-based activities available within the parks.
- The Council confirms it will review the licensing for fitness activities and will make changes if considered necessary.
- The Council says a provider at one of the parks has ceased trading, which indicates there is not the demand required to sustain fitness businesses across all the park sites. However, this could also indicate the licence cost is too high, making it difficult for smaller businesses to practice, as Mr C suggests. I do not know whether the Council has sought feedback from the provider as to why they gave up the licence, it would be sensible to do so to feed into the Council’s review of the licencing position.
- I have found no fault in the way the Council reached its decision to offer one license for fitness provision in each of its bigger parks, or how it decided the cost and term length of the licence. I appreciate Mr C feels strongly there should be more variety, and that the current situation of one license per park limits the possibility of that, but Mr C’s strong feelings are not sufficient for me to say there is fault in how the Council made its decision. Mr C feels aggrieved, and his mental health has suffered, but I cannot say that injustice is caused by Council fault in this case. There is a long history which has not been considered as part of this investigation.
- I have completed my investigation on the basis there was no fault in the way the Council made its decision about fitness provision licensing, and the Council will keep this provision under review.
Investigator's decision on behalf of the Ombudsman