Summary: Mr F complained that the Council had barred him and his wife from its markets. We found no fault.

The complaint

1. Mr F complained that the Council had refused him a stall in a market, barred him and his wife from its markets, discriminated against them as disabled people and did not follow its complaint procedure. He says as a result his charity has lost earnings.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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

4. I spoke to Mr F about his complaint and considered the information he sent and the Council’s response to my enquiries.
5. Mr F 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

What happened

6. Mr F and his wife run a charity. In June 2023 Mr F applied to the Council for a temporary “pop-up” market stall to sell toys.
7. The Council emailed Mr F on 19 October. It said he could not have a stall selling toys as there was already a permanent stallholder selling toys. The Council’s policy did not allow pop-up stalls which sold the same items as a permanent stall.
8. Mr and Mrs F visited the market on 21 October to speak to the market manager. They say they wanted to complain about a stallholder. The market manager says Mrs F immediately started shouting that they could not be stopped from selling toys.
9. I have seen Mr F’s and other witnesses accounts of what happened. There is no dispute that Mrs F was shouting. The manager says she took Mr and Mrs F into her office and that they said the Council had failed to make proper checks about a stallholder and another person. The manager says Mrs F continued shouting so she asked them to leave. There was then an incident in another part of the market. The manager attended and Mrs F continued shouting. Security escorted Mr and Mrs F from the building; as she was leaving Mrs F struck a door with a stick. The manager says she then barred Mr & Mrs F from two markets. She contacted the other market that day to let them know.
10. Mr F wrote to the Council the next day. He said the market manager had started shouting first and had refused to accept their complaint about the other stallholder. He also complained the manager had not followed correct procedures when barring them and had hounded a disabled person. Mr F again raised concerns about the other stallholder.
11. The Council wrote to Mr & Mrs F on 7 November confirming they were barred from both markets for 12 months due to “your behaviour”.
12. Mr F made a formal complaint on 8 November. He denied he had shouted or that his behaviour had been abusive and he disputed the market manager’s account of what happened.
13. The Council’s stage one complaint response of 28 December accepted that Mr F had not shouted and had not been abusive. It said both Mr & Mrs F were barred as they were being treated as a couple as they visited the market together and “sign everything as a couple”. The complaint response upheld the decision to ban them from the markets.
14. On 3 January 2024, Mr F asked the Council for its evidence including CCTV footage. He said he could not request escalation to stage two of the complaint procedure until he had seen this evidence. The Council sent Mr F an email address to request CCTV footage on 9 January. Mr F came to the Ombudsman.

My findings

15. I have seen no evidence of fault in the Council’s decision to refuse Mr F’s application for a temporary stall. This is in line with their policy to not allow temporary stalls which sell the same type of products as a permanent stall.
16. In relation to the incident on 21 October, having seen the statements from Mr F, the market manager and other witnesses the only dispute is whether the market manager raised her voice and whether Mr & Mrs F went into her office. I cannot say what happened but this does not affect my findings. This is because it is not for me to decide what happened. My role is to consider how the Council decided to bar Mr & Mrs F.
17. The Council says it does not have a specific policy about barring members of the public from its markets but its policy for the Management of Unreasonable Behaviour says:

“The Council has a zero-tolerance approach to violence, which includes verbal violence, … and … [if customers are] abusive, offensive, threatening or otherwise behave unacceptably. … a decision may be made to limit or terminate contact with that customer without any prior warning.”

18. My view is that the Council’s policy entitles it to decide to bar Mr & Mrs F if it has evidence that there has been unacceptable and unreasonable behaviour.
19. When the Council wrote to Mr & Mrs F on 7 November, it had seen witness statements from people at the market and Mr F’s account of what had happened. Mr F is concerned that he was wrongly accused of shouting and abusive behaviour, but the Council’s letter is addressed to both him and his wife. I have seen no evidence of fault in the way the decision to bar them was made. As set out in paragraph 2, the law says that if there was no fault in how the organisation made its decision, we cannot question the decision. I therefore do not find fault with the Council’s decision to bar Mr & Mrs F.
20. Mr F complained the Council had discriminated against his wife in relation to her disability. The Equality Act 2010 makes it unlawful for organisations carrying out public functions to discriminate against a person who has one of the protected characteristics, which includes disability.
21. The Ombudsman cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can consider whether a council has properly taken account of an individual’s rights in its treatment of them. In relation to the Council’s decision to bar Mr & Mrs F from its markets, the Council has followed its policy and I have seen no evidence that it has treated them worse than another person without a disability would have been. I therefore do not find any fault.
22. Mr F says the Council did not follow its complaints procedure as his complaint was not escalated to stage two. On the evidence I have seen, this was because Mr F did not ask for it to be considered at stage two because he wanted to see the Council’s evidence first. The Council provided Mr F with an email address to use to request any CCTV footage but I have not seen evidence that Mr F used this. If the Council had refused to send any CCTV Mr F would need to make a complaint to the Information Commissioner. My view is that the lack of consideration at stage two of the complaints procedure was not caused by fault.

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Final decision

23. There was no fault by the Council. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman