The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision to award penalty points for a breach of the market trading terms and conditions. This is because it would be reasonable for Mrs X to take the matter to court.
The complaint
Mrs X complains the Council have unfairly awarded her penalty points for breaching the market trading terms and conditions. She says this has caused her to lose income and has affected her emotionally.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X holds a market trading licence issued by the Council. In December 2021 the Council issued her with penalty points for breaching the market trading terms and conditions. Mrs X disputes whether she has broken any conditions or even whether she should be held accountable to them. She says they were not provided to her when she obtained the licence and therefore, they do not apply.
Mrs X has a legal agreement with the Council for the market trading licence. If she is unhappy with the terms of the licence or believes these terms did not form part of her agreement, or believes the Council’s actions concerning the licence led to consequential financial loss she can take the Council to court. Therefore, the restriction in paragraph 3 applies. It is reasonable to expect Mrs X to go to court as a court would be better placed than the Ombudsman to decide these issues which are not necessarily straightforward legally. The court can decide what terms form the legal agreement, if there have been any breaches of the agreement. It would also be able to provide Mrs X with a remedy for any breach.
Final decision
We will not investigate Mrs X’s complaint because it would be reasonable to expect Mrs X to go to court.
Investigator's decision on behalf of the Ombudsman