Summary: Mr B complained the Council refused to issue a refund after it cancelled the registrar service it was due to provide for his wedding. At this stage, the Ombudsman considers there was fault causing injustice because the Council failed to properly consider Mr B’s refund request. The Council should re-consider its decision.

The complaint

1. The complainant, who I shall call Mr B, complained the Council refused to issue a refund after it cancelled the registrar service it was due to provide for his wedding.
2. Mr B said he suffered financial loss as a result of the Council’s decision.

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The Ombudsman’s role and powers

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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’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)
5. 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”.

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How I considered this complaint

6. As part of the investigation, I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Council’s wedding ceremony terms and conditions.
• The Coronavirus Act 2020.
• Competition and Markets Authority guidance – Wedding services: coronavirus (COVID019), cancellations and refunds.
7. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Wedding ceremony terms and conditions

8. The Council’s terms and conditions (the contract terms) for wedding ceremonies confirm customers can ask for a refund. Refunds are awarded on a sliding scale depending on how long there is to go until the wedding.
9. Customers who cancel less than three months before their wedding ceremony is due to take place are not entitled to a refund.
10. The contract terms also confirm the Council is not liable for any losses incurred if the ceremony cannot take place due to a ‘force majeure event’. This is a legal term that means unforeseeable circumstances that prevent someone fulfilling a contract.
11. The contract terms state a ‘force majeure event’ includes a pandemic.

Competition and Markets Authority guidance

12. The Competition and Markets Authority (CMA) issued guidance about weddings which could not go ahead due to COVID-19 restrictions. It states:
13. “Where a wedding cannot (or could not) go ahead on the date agreed without the parties breaching the lockdown law, the CMA considers that this contract is likely to come to an end (in legal terms, it is said to have been ‘frustrated’). In such circumstances, the consumer will be entitled to a refund, where they have already paid money, and will no longer be liable to make any further payments”.
14. “Where lockdown laws prevent or prevented a wedding from going ahead on the agreed date, the starting point under the law is that the consumer should be offered a full refund (see section 1(2) of the Law Reform (Frustrated Contracts) Act 1943). Consumers would be entitled to refunds even where they have paid what the business says are ‘non-refundable’ deposits or other advance payments”.
15. “A business might try to use terms and conditions which seek to limit its liability to refund consumers whose weddings cannot go ahead or to allow it to recover additional costs. The CMA considers that a court would be likely to find that such terms are unfair and unenforceable if they seek to prevent consumers obtaining refunds as set out in this statement”.

What happened

16. Mr B booked his marriage ceremony with the Council in July 2019. His wedding was due to take place on 4 July 2020.
17. The Council gave Mr B a confirmation letter, including a copy of the contract terms.
18. The Council wrote to Mr B on 2 June 2020 telling him it could not perform marriage ceremonies due to Government COVID-19 restrictions, so it was unlikely he could marry on his chosen date. The Council said Mr B could:
• Postpone and re-book up to a year later.
• Select a new date.
19. Mr B wrote to the Council on 18 June. He said he could not face planning another wedding next year (due to his age) and asked for a refund.
20. The Council said it was not offering refunds because this was a ‘force majeure’ event under its terms and conditions. It repeated the options to postpone or select a new date. It also said Mr B could have his wedding at a smaller venue after 1 September if he preferred.
21. Mr B asked the Council for a refund again on 5 March 2021. He said it was not fair for the Council to rely on ‘force majeure’ and he is entitled to a refund. He referred to consumer law, which states a contract will be considered ‘frustrated’ where it can no longer be performed because of lockdown laws, or if performance would be radically different to what was agreed.
22. The Council said it tried to be as helpful as possible by extending the postponement period. It also offered to move Mr B’s wedding to a smaller venue. It said its terms and conditions were clear and had been checked by its legal team. It signposted Mr B to the complaint procedure.
23. Mr B referred to the CMA guidance again on 11 April and said the Council’s use of ‘force majeure’ was an unfair contract term. He said the original date was the only date family, who live abroad, could attend. He also said he and his fiancée had moved house, to another part of the country, and no longer wished to marry in the Council’s area. Mr B said the Council cancelled the original date and should offer a refund as it had provided no service.
24. The Council sent its final response on 11 May. It said its contract terms specifically state it will not be responsible in the event of a ‘force majeure’ and gave the example of a pandemic. Regarding the advice from the CMA, the Council said:
25. “The work of Registrars is governed by the General Register Officer rather than the Competitions and Markets Authority and, at this time, they are still not permitting wedding ceremonies to take place. Legal advice has been sought, following the CMA letter last year, which confirmed that this would apply to venues etc but not the work of the Registrars”.
26. The Council signposted Mr B to the Ombudsman. Mr B brought his complaint to us on 25 May 2021.

Response to enquiries

27. The Council told me it did not receive specific advice or guidance about refunds for Registrar cancellations.
28. It considers the CMA advice is guidance only and not law. It does not consider there has been any frustration of the contract in this case, so it decided the standard cancellation terms should apply.

Analysis

29. When the Council contacted Mr B to say his wedding could not go ahead in July 2020 as planned it did not cancel his wedding altogether. It offered to hold it on another date.
30. That was not acceptable to Mr B. He was reluctant to plan his wedding again on a future date, so he asked for a refund. While Mr B did not agree to the Council’s offer, he also did not cancel his wedding.
31. The Council is not at fault for the wedding not going ahead, but neither is Mr B. The contract terms confirm the Council is not responsible for any losses if a wedding cannot go ahead because of ‘force majeure’, but they are silent about whether someone can ask for a refund in these circumstances.
32. When the Council told Mr B his wedding ceremony could not go ahead, there was only one month to go until the wedding date. It was therefore no longer possible under the contract terms for Mr B to ask for a refund.
33. Mr B sought to rely on CMA guidance. He considers the contract is frustrated and he is therefore entitled to a refund.
34. It is not the role of the Ombudsman to decide whether a contract is frustrated, or whether a contract term is unfair. They are issues for the Courts to decide.
35. However Government guidance, such as guidance from the CMA, exists to support council decision-making and we expect councils to give due consideration to it.
36. The Council said it took legal advice and the CMA guidance does not apply to Registrars. On the evidence seen, that was fault.

The CMA gave guidance on the specific issue and context relevant to Mr B’s complaint. The Council therefore should not have dismissed it unless it could provide specific, case relevant reasons for justifying departing from that guidance. The Council was entitled to seek its own legal advice. But whatever that advice said, the CMA’s principle stands - that it would be fair for the Council to refund fees where weddings were cancelled and could not be moved to another date for good reason.

37. Mr B said he could not face planning another wedding at his age. He also later told the Council about family travel problems, and that he had moved house, several hundred miles away, so no longer wanted to marry in that area. Unfortunately, the Council did not comment on the reasons Mr B gave. I have not seen evidence the Council considered Mr B’s reasons, or whether, in line with its legal advice, it thought he had given a good reason for not wanting to re-book his wedding ceremony.
38. I found the Council rigidly relied on the contract terms and failed to properly consider Mr B’s individual circumstances. That was fault. It was contrary to the CMA guidance, and the Council fettered its discretion by saying it could not refund the fees.
39. The Ombudsman expects councils to consider whether it would be appropriate to exercise discretion. Councils should not make blanket decisions. Just because a council’s contract terms say it can do something, does not mean it necessarily should or must. Each case must be considered on its merits.
40. It remains up to the Council to decide whether to give Mr B a refund. However, the Council’s failure to properly consider Mr B's request caused him frustration and put him to unnecessary time and trouble. That is his injustice.

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Agreed action

41. Within four weeks of my final decision the Council agreed to:
• Apologise to Mr B for not properly considering the reasons he gave for asking for a refund.
• Re-consider Mr B’s refund request and issue him with a letter setting out the reasons for the new decision.

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Final decision

42. I have completed my investigation. The Ombudsman found there was fault causing injustice because the Council failed to properly consider Mr B’s refund request. The Council agreed to re-consider its decision.

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Investigator's decision on behalf of the Ombudsman