Royal Borough of Kensington & Chelsea (19 014 377)
The Ombudsman's final decision:
Summary: The Council wrongly advertised a property as being eligible for a resident’s parking permit. It has accepted fault, but for legal reasons cannot now allow the complainant to purchase a parking permit. The Council had already offered a remedy for the injustice this has caused, but has agreed with the Ombudsman’s recommendations to take additional steps.
The complaint
- The complainant, to whom I will refer as Mrs K, is represented in her complaint by Mr C.
- Mr C complains the Council wrongly advertised Mrs K’s property as being eligible for a resident’s parking permit. He says she would not have occupied her property, had she been aware she could not apply for a parking permit; and, although the Council has acknowledged its error, Mr C complains it maintains its decision not to offer parking permits to Mrs K in future.
The Ombudsman’s role and powers
- 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)
How I considered this complaint
- I reviewed Mr C’s correspondence with the Council, and information disclosed to me by the Council about the legal advice it had received.
- I also shared a draft copy of this decision with each party for their comments.
What I found
- Mrs K was on the Council’s housing register. She successfully bid for a housing association (HA) rental property and moved in in October 2018. The property had been advertised on the Council’s website as having “residents parking”, and Mrs K applied for a resident’s parking permit for her car shortly after she moved in. The Council granted her a permit.
- In 2019, the Council informed Mrs K her property was, in fact, not eligible for resident’s permits, because a section 106 agreement had been made for it to be ‘car-free’ when the Council gave planning permission. It could not therefore allow Mrs K to renew her parking permit.
- Mr C pursued a complaint on Mrs K’s behalf.
- After initially saying it considered the fault lay with the HA, for failing to explain the conditions of their tenancy, the Council accepted it was at fault for wrongly advertising the property. The Council offered to issue an exceptional further 12-month parking permit to Mrs K, along with £500 to recognise the difficulties the Council’s error had caused her.
- However, it explained that, for legal reasons, it could not continue to offer parking permits to Mrs K in future. Once the exceptional permit it had offered expired, Mrs K would either need to look to move to a different property, or make alternative arrangements to park her vehicle.
- Mr C referred the complaint to the Ombudsman on 24 September, as he did not accept the Council could not offer further permits in future.
Legislative background
Section 106 agreements
- Planning obligations under section 106 of the Town and Country Planning Act 1990 (as amended), commonly known as s106 agreements, are legal agreements between a developer and a local planning authority (LPA).
- These agreements allow the approval of proposed developments, which might otherwise be considered unacceptable because of their impact on the local area. For example, the developer may be required to make a financial contribution towards local amenities.
Analysis
- When Mrs K saw her property advertised on the Council’s website, she was led to believe she would be able to apply for a resident’s parking permit.
- But the Council’s advert was incorrect. In order to alleviate pressure on parking space in the borough, during the planning application process, the Council had reached an agreement with the developer that future occupiers would not be eligible for a parking permit. Such developments are commonly referred to ‘car-free’ or ‘permit-free’.
- It may be the HA also did not properly explain this to Mrs K when she occupied the property. This matter would be outside the Ombudsman’s jurisdiction; but either way, the Council has accepted it was ultimately responsible for originally misinforming Mrs K.
- The Council made a further error when it granted her a permit shortly after she moved in. It was only in 2019 the Council’s error came to light.
- The Council has offered Mrs K a remedy of an additional exceptional 12-month permit (it asked her to confirm her acceptance of this by the end of September 2019), and £500 to reflect the inconvenience she had been caused.
- However, Mr C considers the Council should allow Mrs K to apply for permits in future, despite the restriction. He highlights the length of time Mrs K has already had to wait on the housing register for her property.
- Mr C also points out the Council has a policy to allow rehoused former residents of Grenfell Tower to obtain permits, even if they are in a car-free development, and questions why the same concession cannot apply to Mrs K.
- I asked the Council to explain why it felt it could not make an exception here. In its response, the Council said it had obtained legal advice, and provided me with an excerpt from it. For reasons of legal confidentiality, I cannot reproduce or disclose the advice the Council received.
- However, in summary, it explains that, in order to continue to allow Mrs K to purchase permits, the Council would need to vary (‘change’) the s106 agreement. The legal test for varying a s106 agreement is that it no longer serves a useful purpose, but that test is not met here. For this reason, the Council cannot vary the agreement, and so it follows it cannot allow Mrs K to purchase a permit.
- The Council also explained the policy for former Grenfell residents applies to them as individuals, not to the property they occupy, and so it does present the same legal obstacle.
- I recognise that granting permits to Mrs K appears to be the obvious and most straightforward solution to the problem, and is understandably what she would prefer the Council to do. However, the Ombudsman’s role is to ensure local authorities follow the correct procedures and good administrative practice. We cannot override the law, nor direct an authority to act against legal advice it has received; and so, this means I cannot recommend the Council allow Mrs K to continue to purchase permits in future.
- Where we find fault by an authority has caused injustice to a complainant, we seek to recommend remedies which will put the complainant back in the position they should be in, were it not for the fault. As I have said, the simplest solution here is, unfortunately, not viable. And so I must instead consider what alternatives are available.
- In this case, it is possible Mrs K would not have bid for her property, had she realised they would not be eligible for a parking permit. In that case, the logical solution would be for them to rejoin the housing register, but with her priority backdated to what it was before she accepted her current property.
- This said, I understand entirely why Mrs K would be unwilling to rejoin the housing register. To move now after such a long wait would represent a significant upheaval. And, even if she did rejoin the housing register, there is no guarantee she would be able to find a property which was eligible for a parking permit, or had its own off-road parking.
- I must also account for the possibility Mrs K would have accepted her property, even if she had known she could not obtain a parking permit. If so, she would have to have made alternative arrangements; such as renting a private parking space, or disposing of her car entirely, and joining a ‘car club’ or relying on public transport instead.
- Of course, if Mrs K had still accepted their property, she would be in the same position she is now, and so this would arguably limit the injustice she has suffered. But this would have been her choice. The fact she has been put in this position, without choosing to, remains an injustice.
- The Council has offered Mrs K £500 to reflect the inconvenience she has been put to. It is positive the Council has made this offer without prompting, but given the possible costs Mrs K will face if she chooses to remain where she is, I do not consider this is an adequate remedy.
- Bringing everything together, I consider the most appropriate approach to remedying the injustice to Mrs K should be a flexible one.
- If she does wish to explore moving home, the Council should allow her to rejoin the housing register, with her priority backdated. It should also offer a remedy to recognise the inconvenience this represents, but I consider the £500 it has already offered is adequate for this.
- Alternatively, if Mrs K wishes to remain where she is, the Council should offer a higher financial remedy. This will be to reflect both her inconvenience, and also to offset some of the costs she will face in making alternative arrangements.
Agreed action
- Within one month of the date of my final decision, and in agreement with Mrs K, the Council has agreed to either:
- allow Mrs K to rejoin the housing register, with her priority backdated to when she originally joined; and
- offer to pay her the £500 it has already offered, to reflect her inconvenience and time and trouble.
- Or:
- offer Mrs K £1000 (the £500 it has already offered, and a further £500), to reflect her inconvenience and time and trouble, and to offset some of the costs of alternative arrangements she will need to make.
Final decision
- I have completed my investigation with a finding of fault causing injustice.
Investigator's decision on behalf of the Ombudsman