Summary: Mr B complained that the Council had not followed its own policy when it banned him from trading at one of its markets. We found the Council did not follow its policy on giving warnings, but this did not cause Mr B injustice as he had been allowed to continue trading for a considerable period of time despite repeatedly missing the food hygiene standards. The Council has agreed to improve its procedure for the future.

The complaint

1. Mr B complained that St Albans City Council (the Council) has not followed its market rules procedure in permanently banning him from trading at the St Albans market. Specifically, it failed to give him a verbal or written warning before removing his right to trade there. Mr B says this has caused him significant distress and financial hardship.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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. 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(1), as amended)

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How I considered this complaint

5. I considered evidence provided by Mr B and the Council as well as relevant law, policy and guidance.
6. Mr B 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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What I found

The Council’s markets policy

7. This policy says that all food traders must have a current hygiene rating of four or five to trade on the market. In respect of warnings and permanent bans on trading the policy says:
• If you fail to adhere to market rules or instructions given by us, we will issue a verbal warning for the first instance. For a second incident we will issue a written warning. Any further failure will result in a permanent ban from trading on any St Albans City & District Council markets.
• If we consider the first failure to adhere is serious, we will issue a permanent ban from trading on any St Albans City & District Council markets immediately. Eg: Verbal or physical abuse towards the public, other Traders, or the Markets Team.
• We will issue all written warnings and permanent bans in writing, and they will be effective immediately.

What happened

Background

8. Mr B has run a market stall for many years. In May 2022 he received a one star hygiene rating following a Council inspection. This improved to five stars in January 2023 following a revisit. In May 2023 he received a three star rating increased to five following a revisit in June 2023.

November 2024

9. The Council carried out another hygiene inspection in November 2024 and rated Mr B’s stall as three stars. Mr B requested a re-inspection as he said it had been very windy and this affected the result. The Council reinspected the stall on 18 December 2024 and rated Mr B’s stall as four stars.
10. On 19 December 2024 the Council sent Mr B an email saying that this as the third consecutive year he had received a rating of three stars or less and it was a market requirement to get four. It said this indicated that Mr B was not able to routinely maintain a minimum standard of food safety. So, it had decided to withdraw his pitch on 29 January 2025. The Council explained that it had shown leniency over previous years, but Mr B was not able to maintain the required hygiene standards consistently.
11. Mr B immediately disputed the withdrawal. He said he had only got a three star rating on two not three occasions. In January 2025 he asked the Council to exercise its discretion to let him continue trading as the financial impact of losing the market would be significant.
12. On 23 January 2025 the Council responded saying that the deficiencies the food safety team had highlighted were not the result to the weather conditions and specific contraventions had been identified and accepted by Mr B. The Council’s original decision to withdraw the pitch stood.
13. Mr B submitted a formal complaint, and the Council responded in February 2025 at stage one of its complaints procedure. It repeated its view that this had been the third occasion he had not met the four star requirement. It had previously shown discretion as he was a longstanding trader, but this could not continue.
14. Mr B escalated his complaint to stage two and the Council responded in early March 2025. It upheld its decision to withdraw Mr B’s pitch from the market. It said it did not have a ‘three strikes’ policy but its use of discretion had come to an end because it was not fair to other traders who consistently met the four star rating. It directed Mr B to complain to us which he did.
15. In response to my enquiries the Council has accepted it perhaps was too lenient with Mr B and let the situation continue for too long. However, it does not consider this caused Mr B any injustice as he was allowed to trade for longer than he should have done. It said it is reviewing the market rules to make it clearer what the consequences of failing to meet the food hygiene standards will mean in the future and to ensure public health is paramount.
16. In response to my draft decision the Council says the previous markets manager spoke to Mr B to warn him of the risks of his inadequate hygiene ratings and that this was witnessed by a markets officer. However, it accepts it does not have a record of these exchanges.
17. Mr B has said the Council’s failure to provide him with a written warning means he was deprived of the opportunity to make the required improvements to enable him to continue to trade.

Findings

18. I understand Mr B is unhappy with the Council’s decision to stop him from trading on the market. It is not my role to review that decision, but rather to look at the way in which it was made. The Council has explained the decision was made due to ongoing concerns about Mr B’s ability to maintain consistent food hygiene standards on his stall because over three years he did not meet the required standard of four stars on the first hygiene visit. I find no fault with the reasoning given. Mr B has not met the required standard for three years in a row, until prompted, which has raised concerns about whether his stall could cause a hazard to the public. This is a significant concern which the Council cannot ignore.
19. I consider it did not follow its policy on giving warnings as there is no evidence that it provided verbal or written warnings to Mr B before proceeding to a ban. This was fault. However, I agree that the injustice to Mr B is limited, as he had been allowed to continue trading since 2022 despite receiving three hygiene ratings of less than three stars. If the policy had been strictly followed the Council could have removed him from the market following a verbal and written warning within the same timeframe.
20. I do not accept that the failure to provide a written warning deprived Mr B of the opportunity to make improvements. The reports of the inspections on each occasion detail the areas in which he needed improvements to meet the required standards. Mr B was aware of those standards and there was nothing preventing him from making the improvements. The recurrent failures show that he did not do so.
21. I welcome the Council’s intention to review the market rules and hope they will be followed more closely in future.

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Decision

22. I find fault not causing injustice.

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Investigator's decision on behalf of the Ombudsman