Summary: We will not investigate Mr X’s complaint about how the Council handled an appeal of a food hygiene rating. The courts are better placed to consider his complaint, and we could not achieve the outcome he wants.

The complaint

1. Mr X complained the Council failed to accept his appeal against a food hygiene rating. He said its communication with him was poor and did not make it clear how to appeal. He said the Council published what he saw as an adverse rating when he believed it should not have.
2. Mr X said this put customers off his business and caused him loss of income.

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The Ombudsman’s role and powers

3. 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)
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Food Hygiene Rating Schemes are run in partnership by local authorities and the Food Standards Agency (FSA). Councils may inspect food premises and give them a rating based on food hygiene standards, structural condition and management performance. Ratings range from five for very good premises to zero for those that require urgent improvement.
8. The rating is available to the public through the FSA website. Business owners can request a re-inspection and revised rating and they also have the right to appeal. If a business owner appeals a rating, the FSA website will say the rating is awaiting publication, instead of publishing the rating.
9. The Council carried out a food hygiene inspection of Mr X’s business and gave him a rating. Mr X disagreed with the rating and asked to appeal it.
10. Mr X then complained to the Council because it published the rating he had disagreed with and had not considered any appeal in the meantime.
11. The Council responded to Mr X’s complaint. It accepted it had not properly provided details of how to appeal, including providing him with key contact details. It upheld his complaint and offered him a symbolic payment to remedy the cost for a reinspection and the lost opportunity to appeal.
12. We will not investigate Mr X’s complaint because we could not achieve the outcome he wants. Mr X complains the Council is liable for his loss of income. We cannot make findings on claims of liability or order Councils to pay compensation. These are legal matters only insurers or the courts can decide. If Mr X considers the Council negligent or liable for loss of income, it is reasonable for Mr X to make a claim on the Council’s insurance and, if needed, pursue the claim at court. I have not seen anything to suggest it would not be reasonable for Mr X to take the matter to court.
13. Nor will we investigate Mr X’s complaint the Council failed to include appeal information on the decision letter. The Council told Mr X it has now updated its template to ensure contact details for senior managers are on it. As the Council has already identified how this fault happened and taken steps to put it right and these are appropriate actions, further investigation by us would likely not achieve anything more.

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Final decision

14. We will not investigate Mr X’s complaint because if he considers the Council liable for loss of income, it is reasonable for him to take the matter to court.

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Investigator's decision on behalf of the Ombudsman