Summary: We cannot investigate Mr X’s complaint about a coronavirus improvement notice issued by the Council as Mr X has challenged the notice at court. We will not investigate Mr X’s complaint about a fixed penalty notice issued by the Council and the conduct of a council officer as there are other bodies better placed to deal with the issues.

The complaint

1. The complainant, Mr X, complains about a coronavirus improvement notice (CIN) and fixed penalty notice (FPN) issued by the Council for breaches of restrictions brought in to tackle the COVID-19 pandemic. He also complains a council officer failed to self-isolate as required following a visit to a business which reported cases of COVID-19 amongst staff and customers.

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The Ombudsman’s role and powers

2. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended)

4. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)

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How I considered this complaint

6. I reviewed Mr X’s complaint and the Council’s response. I shared my draft decision with Mr X and considered his comments.

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What I found

7. Mr X runs a public house. Over a period of two months the Council served him a CIN and an FPN for allegedly breaching restrictions brought in to tackle COVID-19. Mr X disputes both notices and has challenged the CIN at court; the Council says despite this they remain valid and enforceable.
8. Mr X complains about the Council’s handling of the matter. He says there was social distancing in place at the public house and accuses the Council’s licensing officer of manipulating the truth. He also says the officer provided inaccurate information and that his witness statement to the court did not match his account of events provided by the Council in response to his ‘freedom of information’ request.
9. Because Mr X has challenged the CIN at court we have no jurisdiction to consider any complaint about the Council’s issue of this notice. We also cannot consider any complaint about the information provided to the court in accordance with Paragraph 5 above.
10. Mr X confirms he has not challenged the FPN at court but the purpose of an FPN is to discharge liability for a criminal offence by paying a fine rather than facing prosecution. It is not for us to decide whether Mr X committed a criminal offence so if he wishes to challenge the FPN he may refuse to pay the penalty and, if the Council decides to pursue the matter, he may present his evidence in defence of any prosecution at court. The courts are better placed to consider whether Mr X committed an offence and if it decides he did not, it has the power to cancel the FPN.
11. Mr X claims the officer failed to self-isolate following a visit to another premises with confirmed cases of COVID-19 between staff and customers and went on to make more than 200 visits over the next 10 days. He is concerned the officer did not follow the law and put people at risk of contracting the virus. But Mr X’s claimed injustice stems from the CIN and FPN issued by the Council rather than any breach of the regulations relating to self-isolation by the officer. The police are better placed to investigate Mr X’s allegation and it will be for them to determine if an offence took place and whether to take any action against the officer concerned.
12. Mr X is also unhappy with the way the Council dealt with his complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.

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Final decision

13. We will not investigate this complaint. This is because Mr X’s injustice stems from the CIN and FPN issued by the Council. Mr X has challenged the CIN and the courts are better placed to deal with any dispute over the validity of the FPN. Whether the council officer should have self-isolated is a matter more appropriate for investigation by the police and this issue does not cause Mr X significant personal injustice.

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Investigator's decision on behalf of the Ombudsman