Licensing procedure and the Ombudsman
The Local Government & Social Care Ombudsman recently upheld a complaint against a council on licensing procedure. Paddy Whur examines the ruling.
I have recently been involved in an interesting case in which the client complained to the Local Government & Social Care Ombudsman about the way in which a borough council had dealt with an application for a review of a premises licence brought by our client. I do not for the purposes of this article intend to either name our client or the council.
In 2017, our client submitted personally and without the benefit of legal advice an application for a review of a premises licence. The matter was a listed for a hearing before the Licensing Committee and we were instructed by our client to represent him at the hearing. The usual hearing documents and papers were sent out and the review application listed in the usual way.
When we appeared before the Licensing Sub-Committee we were told by the legal advisor that the Licensing Sub-Committee were going to retire to consider whether the application for review was frivolous and / or vexatious and the Licensing Sub-Committee retired immediately to make that decision.
I approached the licensing officers (somewhat surprised at the course of events!) and asked if I would be able to address the Licensing Sub-Committee, especially given that the initial review application had been submitted by our client in person. I was told by the licensing officers that I would not be able to address the Sub-Committee. The Sub-Committee returned and immediately read out their decision that the review was frivolous and vexatious and when I asked if I could address them on this point (stressing that the application had been submitted by my client in person) the legal officer refused to allow me to address the Licensing Sub-Committee.
I discussed the various options with my client, but as a lay person, it would not have been possible for him to commence judicial review proceedings so accordingly we submitted an internal complaint through the borough council’s complaint department. We lost. We then submitted a complaint to the Local Government & Social Care Ombudsman against both the finding of the complaints department that our complaint was not upheld and the decision not to allow us to address the Licensing Sub-Committee.
The Ombudsman found that, when considering an application for a review of the licence from a member of the public, the council failed to properly advise the applicant of how it would consider whether the application should be put before a hearing of the committee which resulted in the applicant expending avoidable time and expense in bringing the application to the council.
The Ombudsman raised a number of questions of the borough council and spent some considerable time considering the matter.
The Ombudsman considered the Guidance under section 182 of the Licensing Act 2003, which confirms that ,when considering an application for a review of a premises licence made by a person other than someone designated as a responsible authority, the council must first consider whether the complaint is… relevant, frivolous, vexatious or repetitious.
Guidance issued in March 2015 and April 2017 recommends that councils delegate the decision to relevant officers. If not, then an assessment should be prepared by officers for consideration by the Licensing Committee before any decision is taken that needs a hearing.
The Ombudsman noted that we asked the officers if we could present evidence about the frivolous point when the Sub-Committee returned and were informed that we could. The Ombudsman further noted that, in particular, we wanted to address the Sub-Committee because when making the application, our client acted as a layman without expert advice which, it was submitted, put him at a disadvantage.
The Ombudsman relied on the Guidance which recommends officers make a decision on the frivolous point prior to a hearing being fixed, because if officers find that the review application is frivolous and/or vexatious then it is unnecessary for the council to offer a hearing before the Licensing Sub-Committee. The Ombudsman, in particular, found that the council did not give clear information to our client or us about the duty to consider if the application was relevant. It did not give clear information on how and when the council would decide the issue, which is contrary to the spirit of the Guidance, and the council arranged a hearing which is also contrary to the spirit of the Guidance. A hearing suggests that all parties will be heard and not that the Sub-Committee will simply be addressed by council officers.
It seems that the borough council involved has now changed its policy and that officers will make the frivolous decision prior to fixing a hearing and if the hearing is fixed then it is presumed that officers did not find the review application frivolous. I have to say from a personal point of view that I have found it incredibly surprising that I was not given the right to address the Sub-Committee on this point. If a hearing is fixed and if a point is to be decided at that hearing, then it seems to me to be a basic human right as well as common sense that any party to the hearing is allowed to address the Tribunal.
I must stress that this decision of the Ombudsman is very particular to these facts and not a binding decision in other cases.
Paddy Whur is a partner at Woods Whur. He can be contacted on 07738 170137 or This email address is being protected from spambots. You need JavaScript enabled to view it..