Summary: Mr T complained the Council has unfairly stopped him from trading at its markets following a disagreement with another trader without proper investigation. The Council was at fault as its regulations for market traders did not cover the circumstances of it permanently banning a casual trader. However, Mr T did not suffer a personal injustice. To prevent future fault, the Council has agreed to update and amend its policy to explain what sanctions apply to casual traders and how they can appeal any sanctions.

The complaint

1. Mr T has complained the Council has unfairly stopped him from trading at its markets following a disagreement with another trader without proper investigation.
2. He said this has caused him upset and left him unable to trade which affects his livelihood.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)

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How I considered this complaint

5. I spoke to Mr T and sought information from him and the Council which I have considered in forming my draft decision.
6. I wrote to Mr T and the Council with my draft decision and gave them an opportunity to comment. I considered the comments received before making this final decision.

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What I found

Background

7. The Council allows traders to sell goods under rules set out in its “Information and Market Regulations” document. This explains when different markets are to be held and other rules for market traders. The regulations are mainly for regular traders who pay for a license or permit to secure a specific space, known as a pitch, over several weeks to trade from.
8. The regulations explain under section two that casual traders may be able to take up a pitch if it is still unoccupied after a certain time on market day. This is at the discretion of the Market Supervisor and on a first come, first served basis. Casual traders may also book a casual pitch on subsequent markets if the Market Supervisor knows there will be enough capacity. Casual traders must sign and abide by the regulations set out in the document.
9. Under section three, point 12.17 the market regulations say that “every person hiring a pitch on the Market shall…maintain appropriate conduct at all times and not take any actions likely to bring them or the market into disrepute. Offensive behaviour by a pitch holder is likely to result in an instant termination of the agreement and the pitch holder will be required to cease trading and leave the market immediately and may then be dealt with under the disciplinary procedure under regulation 21 below”.
10. Regulation 21, states any breach of regulations will be reported to the appropriate officer to enable them to take appropriate disciplinary action. This can include a verbal or written warning, suspension from the market for two trading days and permanent revocation of registration. It says the “appropriate level of action will be dependant on the seriousness of the offence. In the event of action being taken the stall holder may appeal against the action within the period” specified as ranging from 7 to 28 days. Depending on the seriousness of the action, the appeal is made to the supervisor, manager or chief executive.

What happened

11. Mr T is a casual trader. This means he has no license or permit from the Council to trade on a regular basis. The Council therefore allowed him to trade at the market on a day by day basis. He attended the market in May 2019. Mr T says another trader had taken his space at the market and refused to move when Mr T asked him. Mr T says he did not want to use another pitch as this pitch was becoming his regular place and customers would not be able to find him if he moved.
12. After speaking the other trader, Mr T spoke to the market supervisor to complain that his pitch had been taken. Mr T says he was courteous and polite to the market supervisor. The Council says Mr T became rude and aggressive towards the other trader and the market supervisor and he displayed unacceptable behaviour.
13. A week later the Council told Mr T it would not offer any further casual or other stalls. It said this was due to him demonstrating unacceptable behaviour at the market, “disrupting other traders and being discourteous to our Market Supervisor”. It asked Mr T not to come back to the Market and if he did, said it would turn him away.
14. Mr T complained to the Council about the decision. This was dealt with under the Council’s complaints process. The Council say this is because as a casual trader he did not have a right to appeal the decision.
15. The Council replied, explaining Mr T had discussed the decision with the Council by telephone and had an opportunity to put forward his version of events. However, the Council said it has spoken to its staff who had confirmed Mr T had behaved in an unacceptable way. It said it would not tolerate this kind of behaviour and it found there were sufficient grounds to not allow Mr T to trade at the market further.
16. Mr T asked for a stage two response, which the Council provided in June 2019, after review by a senior officer. It said that based on the information available including statements from its staff, it would not uphold Mr T’s complaint.

Findings

17. The Council followed the rules set out in its market regulations to consider Mr T’s case. It considered evidence he provided about what happened alongside evidence from the market supervisor. It decided, based on its consideration of this evidence that there were sufficient grounds to stop Mr T from trading at the market. There was no fault in how it made this decision.
18. However, the Council’s regulations for market traders do not cover the circumstances of it permanently banning a casual trader. The only permanent sanction is to revoke someone’s license which does not apply to casual traders. Instead, the regulations allow the market supervisor to decide, on a day to day basis, about whether to allocate a pitch to a casual trader. The Council’s decision to tell Mr T it will permanently no longer accept him as a casual trader was therefore fault as it is not a sanction set out by its regulations.
19. However, this fault has not caused Mr T significant injustice. This is because, by complaining, Mr T’s case was reviewed by a senior council officer who, having reviewed the evidence, including from Mr T, confirmed the evidence justified the Council’s decision not to give Mr T future pitches as a casual trader. This means the Council considered Mr T’s case in a comparable way to as if it had allowed him to appeal. Its confirmed sanction of preventing him from being a casual trader is comparable with the sanction to revoke a license, which is allowed by the regulations.
20. To prevent future fault, the Council have agreed to update and amend its policy to explain what sanctions apply to casual traders and how they can appeal any sanctions.

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Agreed action

21. To remedy the fault the Council have agreed, within three months of the final decision in this complaint, to update and amend its regulations to clearly set out the options for sanctions against casual traders and any right of appeal.

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Final decision

22. I have completed my investigation to find the Council was at fault but this did not cause Mr T significant personal injustice, but the Council has agreed to amend its regulations to prevent the fault recurring in future.

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Investigator's decision on behalf of the Ombudsman