The Ombudsman's final decision
Summary: Mr X complained about the Council’s decision making in respect of applications for the Bounce Back Challenge Fund saying he lost out financially. While there is fault in respect of the right of review and how the Council dealt with Mr X’s complaints, there is no evidence he was wrongly refused a grant.
The complaint
Mr X complained the Council did not assess all grant applications for its Bounce Back Challenge Fund (BBCF) in accordance with its published criteria, did not allow an appeal even though the guidance said it would, did not keep adequate records of its decision making process and that his complaint about this was not investigated impartially.
Mr X says he has suffered financially because he was not awarded this grant.
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 an organisation’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 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)
How I considered this complaint
As part of the investigation, I have: considered the complaint and the documents provided by the complainant; made enquiries of the Council and considered the comments and documents the Council provided; discussed the issues with the complainant; sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.
What I found
Additional Restrictions Grant In October 2020 the Government introduced the Additional Restrictions Grant (ARG) to support businesses impacted by the COVID-19 pandemic. It issued guidance to councils.
The Government encouraged councils to support certain business sectors but made clear they could issue grants at their discretion, based on local economic needs.
The Government also suggested factors for councils to consider when deciding the level of the grant.
All businesses that were trading and met other eligibility criteria could apply to receive funding. Businesses in administration, insolvent or subject to a striking-off notice, were ineligible.
The Council set out its criteria for discretionary payments under the ARG. It decided there would be three streams of funding. Stream three provided funding for wider business support and funds for strategic economic development projects including the Bounce Back Challenge Fund (BBCF).
Bounce Back Challenge Fund The Council set up this scheme to fund ideas to help the area bounce back from the pandemic. It said the fund would be a competitive process to unearth different concepts from as wide a profile as possible. The BBCF offered two levels of grants: up to £15,000 and up to £70,000.
The Council said all applications would be evaluated against pre-determined criteria in four categories with each category given equal weighting. It produced a scoring table which gave guidance on the criteria for scores within each of the four categories and said this was for guidance only and panel members were to use their professional judgement when scoring individual proposals.
Additional guidance stated that if an individual proposal scored zero against any criteria, the application would be rejected. It said that proposals recommended for further consideration must score 15 as a minimum and that if more applications than grant funds meet this minimum requirement, the top scoring applications would be given the grant.
Key facts Mr X currently runs a mobile coffee business. He submitted an application to the BBCF for £15,000 to expand his business with a food truck. The application’s initial assessment by Dorset Growth Hub gave him a score of 13. This score was confirmed by Council officers at the moderation stage and so the Council did not award Mr X a BCCF grant.
Mr X requested a review of his application and when this did not happen he submitted a complaint. The Council confirmed Mr X’s application was not assessed differently to other applications. It was initially assessed by Dorset Growth Hub and then assessed by council officers. Mr X had made a Freedom of Information request prior to making his complaint and so was aware of the notes made by Dorset Growth Hub in respect of his application.
Mr X expressed his disagreement with the views of Dorset Growth Hub that street sellers are not attractive to a tourist area. In response to Mr X’s complaint the Council indicated it did not agree with that sentiment and that it has shown its support for street food in its area. It said that while it did not agree with the view of Dorset Growth Hub it did not consider a different score should be awarded.
It said that with a competitive evaluation process there is scope for different people to give different scores for the same application. It acknowledged that Mr X may have a different opinion as to how certain applications should have been scored but it found no error in how Mr X’s application had been considered.
The Council upheld Mr X’s complaint about the lack of a review process. The Council said it was never its intention to offer a review as part of the BBCF. However the ARG guidance document mentions a right of review which would be carried out by a senior officer. The Council took the view that as the guidance did not specifically exclude the BCCF from the right of review it should apologise to Mr X for any confusion caused. However, it says that prior to the decision being made on Mr X’s application it was assessed on three separate occasions and each assessment reached the same view. It felt that a further review would not materially alter the situation.
The Council concluded that there was no evidence Mr X’s application had been treated differently from other applications. It said that it could not dispute the judgement of officers in respect of their scoring of the application and so did not uphold that aspect of Mr X’s complaint.
Dissatisfied with the outcome, Mr X complained to the Ombudsman. In his complaint, Mr X raised the issue of other organisations being awarded grants even though they did not meet the criteria. In particular, he said that one applicant was given a grant of £70,000 even though it scored less than 15 in total and zero in one of the assessment categories.
Analysis Mr X complains about the Council’s consideration of his application for the BBCF. He says the Council did not assess all grant applications in accordance with the published criteria. Mr X sent me a copy of the initial scoring matrix for all the applications which the Council provided to him in response to his Freedom of Information Act request. Mr X also provided a link to a newspaper article which listed all successful BBCF applicants. This showed that some applicants who either scored less than 15 initially or who scored zero in one category, had been successful, despite the scoring guidance suggesting otherwise.
In response to my enquiries the Council explained that it did state it would exclude any application that scored zero in any of the four categories. It said that during the evaluation process it decided this binary rule would not be in the best interests of the residents and businesses in the area if the application scored more than 15 in total and so it changed the criteria. It says that six applications that scored zero in one category were subsequently overturned and awarded grants.
The Council accepts it changed the criteria during the assessment process and so I find it did not assess all grant applications in accordance with the published criteria. This is fault. The ARG was a discretionary grant scheme and the Council was entitled to decide the qualifying criteria. Government guidance detailed the areas it felt councils should focus on but also said that this was not directive nor exhaustive and so councils should continue to issue grants at their discretion, based on local economic need. I am satisfied that the Council when exercising its discretion did so in accordance with government guidance. It would have been better if the Council had stated at the outset that it could use its discretion at any stage of the process.
While I have found fault I am not persuaded this caused Mr X a significant injustice. Mr X’s application was fairly assessed at the initial and moderation stages and it scored below 15 each time. The fact the criteria changed and other applications were awarded a grant was not directly related to the decision to refuse Mr X’s application. The Council properly considered Mr X’s application and using its professional judgement awarded a score of 13 which was not high enough. I appreciate Mr X does not agree with the scores awarded to his application but the Ombudsman is not a right of appeal and I cannot replace the judgements made just because Mr X disagrees with them.
Mr X raised concerns in respect of one particular application that was initially awarded 11 points and which scored zero in the deliverability category but was awarded a grant of £70,000. The Council has explained that when this was scored at the moderation stage, officers awarded an extra 5 points because it considered the proposal could be delivered within the required timescale. I appreciate Mr X may take a different view but I am satisfied the Council has provided an explanation for how it applied its professional judgement and there is no basis for me to find fault.
Mr X also complains the Council did not allow him to appeal the refusal decision even though its guidance said there was a right of review. I note that in response to Mr X’s complaint, the Council accepted it was not clear on this point and it apologised to Mr X. I am satisfied this is a suitable remedy for the fault identified.
Mr X also complains the records of the decision making process were inadequate. He bases this on the information provided to him in response to his Freedom of Information Act request. I note the information provided to Mr X was redacted and did not include the notes setting out the reasons for the decision making. I am not persuaded there is fault on this issue. Mr X feels there should be more detailed notes but there is no statutory requirement for this or requirement set out in the government guidance for the ARG.
Mr X says his complaint was not investigated impartially. He says the stage one response did not address his complaints. He says the stage two response took 82 days and the officer never got in touch to clarify points with him and the officer did not make notes.
The Council produced a report at stage two of the complaints process which detailed the complaint, desired outcomes, findings and conclusions. It is clear Mr X had certain expectations of how the complaint should be investigated however, this was the Council’s internal complaints procedure and so it is for the Council to decide how to investigate it. While the Ombudsman takes the view that it is preferable to contact a complainant at the beginning of the complaint investigation process, I cannot say it is fault if a council does not do this.
Mr X made his stage two complaint on 11 November 2021 and the Council’s response is dated 13 January 2022. While this does not appear to be the 82 days Mr X mentions, it is longer than the 20 working days stated on the Council’s website. Mr X says the Council did not keep him informed in this time or provide any explanation for the delay. I appreciate this was frustrating for Mr X and consider the Council should apologise.
Agreed action
The Council, within one month of my final decision, will apologise to Mr X for the delay in concluding the stage two complaint investigation.
Final decision
I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.
Investigator's decision on behalf of the Ombudsman