The Ombudsman's final decision
Summary: We will not investigate this complaint about the advice given to the complainant that she cannot sell a particular item and that she should destroy her stock. The complaint does not meet the tests set out in our Assessment Code. on how we decide which complaints to investigate. We have seen no evidence of fault in the way the Council dealt with the complainant.
The complaint
I will refer to the complainant as Ms J and her representative as Mr K.
Mr K complains the Council is discriminating against Ms J. This is because it has instructed her to destroy her stock of a particular product which does not have a machinery certificate which the Council deems essential. However, the Council is now aware that other similar machines supplied by other retailers do not have the machinery certificates. But no action is being taken against the other companies.
Mr K wants Ms J to be able to sell her products without machinery certificates, as other companies are doing.
The Ombudsman’s role and powers
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) 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)
How I considered this complaint
I considered information provided by Mr K and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms J asked the Council for advice on packaging for a product she had imported for resale. The Council told Ms J she could not sell the product as there was no machinery certificate available. It told her the products must be destroyed by a specialist and to let the Council know when this was complete.
Following contact from Ms J and Mr K the Council bought four machines from different manufacturers and tested them. It determined machinery certificates are essential. The Council confirms it has forwarded its findings to the relevant Councils where the other businesses selling the other three machines are headquartered. It will be for these councils to decide whether to act regarding the lack of machinery certificates.
Mr K says the Council has threatened, bullied, and intimidated Ms J. I have not seen any evidence to support this allegation.
Mr K says because other councils are not acting against other retailers who sell similar products, the Council is discriminating against Ms J.
The Council has confirmed it is for Ms J to decide whether she sells the product or not. But the product does not meet the requirements of the applicable directive. It has sent its findings about other non-compliant products to Councils where the relevant retailers have their headquarters. It is for those authorities to decide whether to act.
Final decision
We will not investigate Mr K’s complaint because it does not meet the tests set out in our Assessment Code are not met. We have not seen evidence of fault in the way the Council made its decision to advised Ms J to destroy her stock because it does not have the relevant certificate.
Investigator's decision on behalf of the Ombudsman