Summary: On behalf of Company J, Mr X complained about how the Council assessed Company J’s application for use of sports facilities. We have found the Council at fault because it did not properly assess Company J’s application, and for failures in complaint handling. This caused uncertainty for Mr X and Company J. We have also found the Council at fault for failing to contemporaneously document how it assigned resources for successful applicants. The Council has agreed to apologise to Mr X and Company J. The Council has also agreed to improve its procedures to prevent these faults occurring in future.

The complaint

1. On behalf of Company J, Mr X complains about how the Council assessed an application for continued use of sports facilities. Mr X said the Council:
1. Failed to verify the information it received from applicants;
2. Failed to mark Company J’s application correctly;
3. Failed to satisfactorily explain how it assessed and marked applications it received from other groups; and
4. Failed to apply a consistent or fair set of marking criteria for all applications it received when assigning time and resources.
2. Mr X said the Council’s faults meant Company J lost the use of timeslots and facilities it had used consistently for many years. This affected Company J’s community work, impacting vulnerable people in the district.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. If we are satisfied with an organisation’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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What I have and have not investigated

7. Part of Mr X’s complaint (paragraph 1c) concerned the Council failing to explain how it assessed and marked applications it received from other groups. Mr X said the Council failed to be open and transparent. The Council said it would not disclose other groups’ applications or scoring data, as this was private data.
8. Mr X has the right to complain to the Information Commissioner’s Office (ICO) about the Council’s decision not to disclose this information. The restriction set out in paragraph 4 applies and I have not considered this part of Mr X’s complaint.

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How I considered this complaint

9. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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Relevant legislation, guidance and policy

Principles of good administrative practice

11. The Ombudsman published the Principles of Good Administrative Practice (the Ombudsman’s Guidance) in 2018. The Ombudsman’s Guidance sets out the Ombudsman’s benchmark for the standards expected when investigating local authorities’ actions.
12. The Ombudsman’s Guidance stresses the importance of being open and accountable, explaining the reasons for decision making, and keeping proper, suitable records.

Council’s complaints procedure

13. The Council operates a two-stage complaints procedure:
1. The Council says it will confirm receipt of a complaint within two working days.
2. At stage one of its complaints procedure, the Council says it will respond to complaints within 20 working days of receipt.
3. At stage two of its complaints procedure, the Council says it will review the complaint and aim to respond within 20 working days. It says if it needs more time, the Council will tell the complainant why.

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What I found

Key events

14. Below is a summary of the key events leading to this investigation. It does not detail every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
15. Every three years, the Council invites applications from local groups for use of its sporting facilities. The Council assesses these applications before deciding what slots and resources it can assign. Once assigned, groups will keep use of those slots for the next three years.
16. Company J is a charitable organisation operating within the Council’s district. In March 2023, Company J applied to the Council for use of facilities. In its application, Company J:
• Explained how it worked with other agencies to contribute to the Council’s local objectives.
• Highlighted that it delivered services to hard-to-reach groups and made a significant community impact.
• Confirmed which slots and resources it wanted to reserve. Company J had used these slots already for several years.
• Provided relevant supporting information.
17. In May 2023, the Council began assessing and scoring the applications. In August 2023, the Council wrote to successful groups to confirm what slots and resources it would assign.
18. Mr X wrote to the Council to express disappointment at changes to Company J’s allocations. The Council had removed some of Company J’s existing slots. Other slots had seen reductions in allocated time and/or resources. Mr X set out the impact this would have on those using its service and the wider community. Mr X asked the Council to reconsider its decision.
19. Mr X made a freedom of information request to understand how the Council had scored Company J’s application and how it assigned time and resources. Between September 2023 and January 2024, Mr X and the Council exchanged correspondence about this information disclosure. Summarised:
1. The Council said it could not confirm which other groups had applied, disclose marking sheets or scores for other groups, or provide copies of other groups’ application forms. The Council said this information was private data.
2. Mr X asked why other groups applying for fewer slots had seemingly scored higher than Company J. The Council told Mr X the number of slots sought by a group was not a criterion for assessment.
3. Mr X queried the number of hours offered to Company J throughout the week. The Council said it offered Company J more hours than other groups.
4. Mr X said having received a copy of Company J’s scoresheet, around half of the questions had been marked incorrectly. The Council accepted this and said it was an oversight. It confirmed it had since reassessed Company J’s scores. Mr X queried this, stating the scale of the error made this explanation hard to accept.
5. Mr X sought assurance the Council had not inflated or adjusted other groups’ scores. The Council said all groups had been subject to the same scoring criteria, with panellists marking applications independently before scores were collated. The Council said it had reassessed all other relevant applications when it reassessed Company J’s scores. The Council said after reassessment, there was one group that scored lower than Company J. However, the Council said it would not reallocate the other group’s slot, as it wished to try and accommodate as many groups as possible. The Council said Company J scored lowest in comparison to other groups that applied for the same slots.
6. Mr X and the Council exchanged views on the scores given for specific questions, how the Council verified information submitted, and how the Council assessed this evidence.
20. In January 2024, the Council provided Mr X with Company J’s reassessed score sheet. Mr X sought an internal review of the Council’s information disclosure, as he said Company J was not satisfied the Council was being transparent and fair in how it assigned resources.
21. In February 2024, the Council provided its information review response. In summary, the Council said it would not disclose data belonging to other groups. The Council provided Mr X with the right to refer its decision to the ICO. It said it offered Company J more slots than other groups overall.
22. On the same day, Mr X asked the Council to respond to his concerns about how it allocated resources. The Council logged Mr X’s concern as a complaint on 12 March 2024.
23. On 2 May 2024, the Council acknowledged and responded to Mr X’s complaint. Both the acknowledgement and complaint response were dated 29 April 2024. However, neither were sent on this date.
24. In its response, the Council:
1. Said its application procedure could be improved. It said it had found discrepancies in some of the panellist scoring and oversights in some moderation. The Council said it would make improvements to prevent this from happening again.
2. Said it considered Company J obtaining several slots to be fair and reasonable, given the demand for resources. The Council said it recognised Company J’s diverse programme delivery. It said it had assigned more slots than other groups in recognition of this.
3. Said if other slots became available, it would contact Company J. The Council apologised for the inconvenience caused.
25. The Council’s records show Mr X escalated Company J’s complaint on 28 June 2024. On 11 September 2024, the Council responded, largely reiterating the same points it had already made.
26. During this investigation, the Council told the Ombudsman it had since provided Company J with more weekly slots. Mr X also confirmed the Council had reallocated most of the slots it had removed from Company J in 2023. However, Mr X said the loss of these slots across an extended period had led to a loss of service users, many of whom had not returned. This in turn had affected Company J’s outreach work, with a wider impact on the community. Mr X said Company J had had to invest time and resources to reengage users, which would not have happened if the Council had scored Company J’s application correctly the first time.

Analysis

Did the Council act with fault?

Verifying information and allocating resources

27. Mr X complained the Council did not verify information applicants provided. He said the Council took applications at face value, but some groups misrepresented or exaggerated what they could deliver. Mr X said because of this, the Council awarded slots to other groups at Company J’s expense.
28. The Council told me it verifies the information it receives from applicants in several ways:
• It says some officers work directly in partnership with many of the applicants, so already have knowledge of the services and what they can deliver.
• The Council conducts online checks of any claimed accreditation status.
• The Council evaluates evidence provided with applications, such as community impact, service delivery, and achievements.
• The Council conducts random spot checks to assess use after assigning resources.
• The Council collects participation monitoring data at regular intervals to help inform decisions about allocations. The Council provided me with examples of these exercises, showing regular monitoring.
29. It would be for the Council to decide what information it needs to assess applications, and how best to verify that information in a way proportionate to its available resources. I have not found the Council at fault for how it verifies information provided on applications.

Company J’s application

30. The Council assesses and scores each application against set criteria. Senior officers then review the scores and assign slots and resources. If necessary, the Council says it will carry out a moderation exercise.
31. The Council accepted errors in how it first scored Company J’s application. It said it corrected these errors on reassessment. I understand the Council reassessed these scores only after Mr X raised concerns, and after it had already allocated slots to Company J and other groups.
32. Three assessors completed the initial scoring. Two different assessors completed the reassessed scoring, using the same criteria. Company J’s score increased significantly on reassessment.
33. The cause of this disparity is not clear. Mr X told the Ombudsman he was concerned there had been an intentional effort to lower Company J’s score. I have seen no evidence to suggest this was the case. It appears the initial assessors did not see or have access to supporting information Company J included with the application, or failed to give this information sufficient weight. This affected the scores on several questions. The Council addressed this on reassessment.
34. The Council accepted errors in how it first assessed Company J’s application. I agree with the Council’s assessment and have found the Council at fault for this.

Marking criteria and allocations

35. Mr X was concerned the Council applied different criteria to different applications. I have seen evidence the Council considered each application against the same scoring criteria. It also provided scoring guidance to each assessor, a copy of which I have seen. When it reassessed Company J’s application, the Council also reassessed the applications of other groups that sought the same slots or resources. I have not found the Council applied different criteria to each application.
36. I asked the Council how application scores led to assigned time and resources for successful groups, especially in cases where there was a conflict. The Council told me:

• There was no specific procedure or guidance on assigning resources based on application scores.
• Where applicants scored highly, the Council awarded them their preferred slots, or reaffirmed existing slots. The Council said there was a particular focus on priority groups with high scores, such as young people, individuals with special educational needs (SEN), groups with protected characteristics and veterans.
• Groups that received respectable scores were allocated slots according to their preferences, or were offered alternative slots.
• When it was difficult to meet groups’ first, second or third choices, the Council tried to provide alternative slots. It may offer a group some of their preferred slots, while also offering some alternatives. The Council said it tried to balance the competing needs of multiple users to make sure every group had at least some access to the limited facilities.
• The Council said it designed the application process to include as many groups as possible from within the local area, or that engaged with local residents. The Council also said it made clear it could not guarantee a specific amount of time per week and that it could not accommodate all preferences.

37. I asked the Council to provide evidence of how it decided which slots it would assign to each group. The Council told me officers drafted the resource allocation schedule. The Council said officers then reviewed and refined the draft schedule in meetings and by telephone. It said these decisions were not documented. The Council said once it finalised the allocations, it notified applicants of the outcome in writing.
38. The Ombudsman’s Guidance places an emphasis on being open and transparent, explaining the reasons for decisions, and keeping proper, suitable records. The Ombudsman would expect the Council to clearly record and evidence how it decided to assign limited public resources, particularly when there was a significant demand.
39. I have found the Council at fault for failing to properly document how it decided to assign resources in this case.

Complaint handling

40. Paragraph 13 sets out the timescales for the Council’s complaints procedure.
41. The Council delayed acknowledging and responding to Mr X’s stage one complaint by around five weeks. The Council also delayed responding to Mr X’s stage two complaint by around six weeks.
42. I have found the Council at fault for its delay in acknowledging and responding to Mr X’s complaint at both stages of its complaints procedure.

Did the Council’s faults cause an injustice?

43. The Council acted with fault when it failed to score Company J’s application correctly. The Council told Mr X this did not make any difference to the resources it assigned. It said it reassessed all applications and, even after reassessment, Company J scored less than other groups that applied for the same resources.
44. The Council provided the Ombudsman with the original and reassessed scoring sheets for the relevant applications. Other scores changed by varying amounts on reassessment.
45. An analysis shows one slot sought by Company J was split between other groups, which initially scored higher than Company J. After reassessment, Company J scored higher than one of these groups. This is distinct from the example the Council already highlighted in its correspondence with Mr X, detailed in paragraph 19e.
46. I cannot say, even on the balance of probabilities, what the Council would have done had it scored Company J’s application correctly the first time. The Council’s explanation of how it assigns resources, set out in paragraph 36, suggests that while application scores are a significant factor, other factors are also relevant to its decisions. The Council did not make this clear to Mr X in its exchanges of correspondence, which has caused frustration. Officers have some discretion over how best to assign resources, especially when there are competing demands. The Council may therefore have made the same decisions again. However, the Council also said groups that score highly are likely to keep previous slots. The Council may therefore have decided to assign its resources differently, prioritising Company J for new or existing slots when doing so.
47. That I cannot say what would have happened causes uncertainty. This uncertainty is an injustice to Company J and Mr X in itself.
48. The Council’s failure to keep a contemporaneous record of its decision-making causes uncertainty about what the full range of factors were and how it balanced these when making its decision. I cannot say that Company J suffered a specific disadvantage because of this. I note particularly the Council’s point that it allocated more slots to Company J overall than to others. However, not keeping a clear record reduces scrutiny of the Council’s decisions as they were taken, impacting the principles of openness and accountability. This lack of clarity could cause injustice to others in the future if left unaddressed.
49. The Council appears not to conduct moderation exercises as standard. The Council appears only to have revisited the initial scores after Mr X raised concerns. I have seen no evidence the Council considered a moderation exercise before this. Further, it is unclear what test the Council applies to decide if moderation is necessary.
50. A standard moderation exercise would have identified problems with the initial scoring. This would have mitigated or avoided the uncertainty caused to Mr X and Company J. This could also avoid injustice to others in future. I have considered this in my recommendations.
51. The Council’s delay in responding to Mr X’s complaints caused Mr X avoidable time and trouble, and frustrated his approach to the Ombudsman. These are injustices to Mr X.

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Action

52. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Company J for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Share a copy of the Ombudsman’s “Principles of good administrative practice” with officers involved in assigning the resources in question.
3. Refine and formalise the procedure for assigning resources, specifying that:
1. mandatory moderation is conducted following initial scoring; and
2. decisions on how resources are allocated are formally documented, at the time they are taken, in a manner consistent with the principles set out in the Ombudsman’s Guidance.
53. The Council should provide us with evidence it has complied with the above actions.

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Decision

54. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman