Summary: Mr X complained about the Council’s decision to refuse him a business grant and its communications, causing him financial loss and inconvenience. We found the Council at fault because it did not offer Mr X a review or appeal of its decision and its communications were not adequate. We recommended it apologise, pay £150 for time and trouble, review its decision and act to prevent recurrence.

The complaint

1. Mr X complains about the Council’s decision to refuse him a business grant and its poor communications. He says he has suffered financially and suffered avoidable inconvenience, time and trouble.

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The Ombudsman’s role and powers

2. 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)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)

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How I considered this complaint

5. I spoke to Mr X and I reviewed documents provided by Mr X and the Council.
6. I gave Mr X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Government guidance

7. On 21 December 2021, the Chancellor announced a £102 million top-up for the Additional Restrictions Grant to support businesses severely impacted by the rise of the Omicron variant.
8. Councils had discretion to set up their own schemes having regard to the Government guidance.
9. In taking decisions on the appropriate level of grant, councils could take into account the level of fixed costs of the business, the number of employees the business has, whether it is unable to trade online and the consequent scale of coronavirus losses.
10. Councils needed to manage their application and payment process to achieve all spend by 31 March 2022, as it would not allow payments after this date.

Council grant scheme

11. The Council opened its Omicron Discretionary Grant scheme on 1 February 2022, publishing details on its website. The application window closed on 21 February and all payments were to be made from 1 March.
12. The Council said which types of business it would support. Businesses also had to meet the following eligibility criteria.
• Have experienced a severe impact on turnover in 2020/21, meaning at least a demonstrable 25% drop, due to the recent impacts of Omicron and the Plan B restrictions.
• For home-based businesses, soul traders and partnerships, the applicant business owner must be resident in the borough.
• Be based in the borough and / or substantially trading and delivering the business in the borough (at least 50% of business and or employees in Kingston upon Thames).
• Where no business property costs are incurred, have other significant demonstrable business costs to cover, such as insurances, professional memberships, software fees, or vehicle lease for example.
• Businesses in shared workspaces can apply. Due to the impact of the Omicron businesses that have started up and are trading during the pandemic restrictions can also apply, however, it may adjust grants depending on how long a business has been trading.
13. The grant payable would be between £1000 and £3000. For rateable businesses the amount would depend on their rateable value. For others it would depend on the number of employees.
14. The Council’s application form required a business to provide details of their income, fixed costs and how they had been impacted. Relevant to this case, businesses had to list their fixed costs and upload evidence of at least one of their fixed costs.
15. The Council published internal guidance for staff on assessing applications. This said businesses had to show a minimum level of fixed costs of £500 per month.
16. This document also confirmed the Council offered no review or appeal.

Council complaints policy

17. The Council publishes it complaints policy on its website.
18. It aims to provide a stage 1 response within 15 working days.
19. At stage 2, a senior council officer who has not been involved in the case before will reconsider the complaint and respond within 15 working days.
20. If a person remains unhappy they can contact the Ombudsman.

Principles of Good Administrative Practice

21. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction “Principles of Good Administrative Practice”. This includes:
• Being open and clear about policies and procedures and ensuring information, and any advice provided, is clear, accurate and complete
• Having clear and accessible appeal routes
• Providing clear and timely information on how and when to appeal or complain

What happened

22. Mr X applied for a grant on 1 February. He stated his fixed costs and provided evidence in support.
23. On 17 February the Council told Mr X it would make payment.
24. Mr X chased payment on 7 March. On the same day the Council told him it refused a grant because his fixed costs were below the minimum requirement for the scheme.
25. On 7 March Mr X asked for an explanation as he was previously told he would get a grant. He queried the minimum requirements.
26. On 15 March the Council said it had no record of approving a grant. Businesses had to show £500 per month fixed costs and his reported costs were significantly lower.
27. On 27 March Mr X replied to the Council there was no indication of this criteria previously. He must have made a mistake on his application form as his costs exceeded £500 per month. He was gathering evidence in support.
28. The Council responded to explain it could not state the threshold publicly as this could have encouraged fraudulent declarations. The application window was now closed and the deadline for providing additional evidence was 5pm on 18 March 2022. It had no funds left and could not now make any award to his business based on new evidence.
29. Mr X said the Council did not respond to him until 15 March and did not mention any deadline for evidence. He asked how to appeal.
30. Mr X says he received no reply to this despite chasing.
31. On 17 August Mr X complained:
• No-one responded when he asked how to appeal;
• The Council wrongly told him he could not complain about the outcome and handling of his grant application;
• The Council approved him for a grant on 17 February;
• The Council then refused a grant based on criteria not advertised; this lacked transparency;
• The £500 per month figure was arbitrary;
• He had no chance to provide evidence of his correct costs.
32. The Council responded on 19 August. In summary:
• He could complain about the Council’s actions in assessing his claim but he could not appeal its decision to refuse a grant.
• It initially told him his application was successful in error. Upon further checks it overturned this decision on 15 March. This is because he did not have fixed costs of £500 per month as required under its scheme.
• It accepts he had little chance to respond before its payment deadline of 18 March. However, he declared his annual fixed costs on his application form and it would not expect this to be incorrect.
• It did not disclose all the qualifying criteria because: it did not have to; the criteria may have changed and; to prevent fraud.
• It received further information from him about his costs but this was after the scheme closed. It had no scope to make payment now.
33. On 14 September Mr X asked to go to stage 2, unhappy with the stage 1 response.
34. The Council responded on 18 October. In summary:
• It apologised he was led to believe there was an appeals process; there was not.
• It apologised it incorrectly said he would receive payment.
• It was reasonable to expect him to complete his application form accurately.
• It was reasonable to withhold details of the scheme.
• It had acted appropriately and would not pay the grant.

Findings

35. The Council initially told Mr X it would pay him the grant in error. This is fault. This led to raised expectations and disappointment for Mr X. This is injustice.
36. The Council’s policy required businesses to have significant demonstrable business costs to cover. Its application asked businesses to state their costs and provide evidence in support. The Council’s internal guidance made clear it would require evidence of at least £500 per month fixed costs.
37. Mr X stated his business costs and provided evidence in support. However, his costs did not meet the threshold for eligibility. The Council refused Mr X a grant in line with its policy and in line with its internal guidance on eligibility. I find no fault in its decision making.
38. It was not clear to applicants the level of fixed costs they would need to show to be eligible. This is not in line with our usual expectations on transparency. However, the Council has given reasons why it decided not to publish this information. I cannot question its decision in this regard. I find no fault.
39. We expect councils to offer complainants a review or appeal, even where there is no right to a review or appeal. However, the Council did not offer a review or appeal process and it did not give Mr X any reasonable opportunity to challenge its decision. This is fault. Mr X has suffered a missed opportunity. This is injustice.
40. The Council did not respond to Mr X’s request for information about how to appeal. This is fault. Mr X was put to avoidable time and trouble. This is injustice.
41. The Council was entitled to have the same officer who refused the grant provide the stage 1 response. A senior officer then responded at stage 2 in line with its policy. I note Mr X considers the complaint should have been dealt with by a different team at both stages, however I find no fault.
42. The Council’s stage 2 response was delayed and it did not signpost to the Ombudsman. This is fault. Mr X was put to avoidable time and trouble. This is injustice.

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Agreed action

43. To remedy the injustice identified above the Council should carry out the following actions:
44. Within one month:
• Provide Mr X with a further apology;
• Pay Mr X £150 for time and trouble;
• Invite Mr X to provide evidence of his fixed costs and review its decision in light of this. If the Council finds Mr X would have been eligible for a grant it should pay him an equivalent amount.
• The Council should send Mr X its decision and reasons.

Within three months:

• Take action to ensure it signposts to the Ombudsman within its final complaint responses.
• Remind those responsible for Council policy that the Ombudsman expects councils to offer a review or appeal on its decisions.
5. The Council should provide us with evidence it has complied with the above actions.
6. The Council has accepted my recommendations.

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Final decision

47. I find the Council at fault because it did not offer Mr X a review or appeal of its decision and its communications were not adequate. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman