The Ombudsman's final decision
Summary: We will not investigate this complaint about the actions of the Council connected to the issuing of a premises licence. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. The complainant had a right of appeal to the Magistrate’s Court.
The complaint
The complainant, I shall call Mr X, says the Council: made repeated errors in processing a licensing application the license does not reflect the Licensing Sub-Committee decision did not provide a copy of the license he lost his appeal rights; and the Council failed to respond to his complaint.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended) We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Licensing Act 2003 says a review applicant can appeal against the review decision within 21 days of the date they are notified of the decision. The Council's notice of decision set out the applicant’s right to appeal against the decision to the Magistrates Court.
The Council’s Licensing Committee met in August to consider the licensing application. The published details for the application state: “Any appeal must be made to the Magistrates Courts and must be within the period of 21 days beginning with the day on which the appellant was notified by the licensing authority of the decision appealed against.”
The Council did not issue the decision until 30 November. Mr X says the Council denied him his appeal rights because of the delay in issuing the decision.
This is not the case. The decision letter sent to Mr X on 20 November, clearly states: “You have the right of appeal against this decision. Any appeal should be lodged with the Magistrates Court at York within 21 days of the date of receipt of this letter.”
As stated above, licensing decisions are appealable to the Magistrate’s Court. Where there is a specific statutory right to appeal against the council’s actions, the Ombudsman will not usually exercise discretion to investigate.
Mr X was told of his right of appeal. He did not exercise that right. As the law specifically gives review applicants a right of appeal against a decision they are unhappy with, it was reasonable to expect him to use the appeal right the law provides.
The court has powers, which the Ombudsman does not have, to overturn a licensing decision. Mr X could have presented the court with her objections to the licences and associated conditions. It would then have been for the court to decide if it had enough evidence to decide the appeal.
Mr X also complains the Council has not provided a substantive response to his complaint. His complaint to the Council says he is seeking a copy of the licence issued and the decision letter. He also asks for confirmation of the position of his appeal rights.
The Council provided Mr X with a summary of the licence and the decision letter. As noted above, the decision letter confirmed his appeal rights.
Final decision
We will not investigate Mr X’s complaint because he was told of his appeal which was available to him for 21 days from the date he received the decision letter. It is reasonable to expect him to have used that right.
Investigator's decision on behalf of the Ombudsman