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 complainants 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

1. The complainants, to whom I will refer as Mr and Mrs B, are represented in their complaint by their son, Mr C.
2. Mr C complains the Council wrongly advertised Mr and Mrs B’s property as being eligible for a resident’s parking permit. He says they would not have occupied their property, had they been aware they 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 Mr and Mrs B in future.

Back to top

The Ombudsman’s role and powers

3. 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)

Back to top

How I considered this complaint

4. I reviewed Mr C’s correspondence with the Council, and information disclosed to me by the Council about the legal advice it had received.
5. I also shared a draft copy of this decision with each party for their comments.

Back to top

What I found

6. Mr and Mrs B were on the Council’s housing register. They 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 Mr and Mrs B applied for a resident’s parking permit for their car shortly after they moved in. The Council granted them a permit.
7. In 2019, the Council informed them their 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 Mr and Mrs B to renew their parking permit.
8. Mr C pursued a complaint on Mr and Mrs B’s behalf.
9. 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 Mr and Mrs B, along with £500 to recognise the difficulties the Council’s error had caused them.
10. However, it explained that, for legal reasons, it could not continue to offer parking permits to Mr and Mrs B in future. Once the exceptional permit it had offered expired, Mr and Mrs B would either need to look to move to a different property, or make alternative arrangements to park their vehicle.
11. 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.

Back to top

Legislative background

Section 106 agreements

12. 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).
13. 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.

Back to top

Analysis

14. When Mr and Mrs B saw their property advertised on the Council’s website, they were led to believe they would be able to apply for a resident’s parking permit.
15. 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’.
16. It may be the HA also did not properly explain this to Mr and Mrs B when they 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 Mr and Mrs B.
17. The Council made a further error when it granted them a permit shortly after they moved in. It was only in 2019 the Council’s error came to light.
18. The Council has offered Mr and Mrs B a remedy of an additional exceptional 12-month permit (it asked them to confirm their acceptance of this by the end of September 2019), and £500 to reflect the inconvenience they have been caused.
19. However, Mr C considers the Council should allow Mr and Mrs B to apply for permits in future, despite the restriction. He highlights the length of time Mr and Mrs B have already had to wait on the housing register for their property.
20. 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 Mr and Mrs B.
21. 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.
22. However, in summary, it explains that, in order to continue to allow Mr and Mrs B 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 Mr and Mrs B to purchase a permit.
23. 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.
24. I recognise that granting permits to Mr and Mrs B appears to be the obvious and most straightforward solution to the problem, and is understandably what they 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 Mr and Mrs B to continue to purchase permits in future.
25. 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.
26. In this case, it is possible Mr and Mrs B would not have bid for their property, had they 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 their priority backdated to what it was before they accepted their current property.
27. This said, I understand entirely why Mr and Mrs B would be unwilling to rejoin the housing register. To move now after such a long wait would represent a significant upheaval. And, even if they did rejoin the housing register, there is no guarantee they would be able to find a property which was eligible for a parking permit, or had its own off-road parking.
28. I must also account for the possibility Mr and Mrs B would have accepted their property, even if they had known they could not obtain a parking permit. If so, they would have to have made alternative arrangements; such as renting a private parking space, or disposing of their car entirely, and joining a ‘car club’ or relying on public transport instead.
29. Of course, if Mr and Mrs B had still accepted their property, they would be in the same position they are now, and so this would arguably limit the injustice they have suffered. But this would have been their choice. The fact they have been put in this position, without choosing to, remains an injustice.
30. The Council has offered Mr and Mrs B £500 to reflect the inconvenience they have been put to. It is positive the Council has made this offer without prompting, but given the possible costs Mr and Mrs B will face if they choose to remain where they are, I do not consider this is an adequate remedy.
31. Bringing everything together, I consider the most appropriate approach to remedying the injustice to Mr and Mrs B should be a flexible one.
32. If they do wish to explore moving home, the Council should allow them to rejoin the housing register, with their 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.
33. Alternatively, if Mr and Mrs B wish to remain where they are, the Council should offer a higher financial remedy. This will be to reflect both their inconvenience, and also to offset some of the costs they will face in making alternative arrangements.

Agreed action

34. Within one month of the date of my final decision, and in agreement with Mr and Mrs B, the Council has agreed to either:

• allow Mr and Mrs B to rejoin the housing register, with their priority backdated to when they originally joined; and
• offer to pay them the £500 it has already offered, to reflect their inconvenience and time and trouble.

35. Or:

• offer Mr and Mrs B £1000 (the £500 it has already offered, and a further £500), to reflect their inconvenience and time and trouble, and to offset some of the costs of alternative arrangements they will need to make.

Back to top

Final decision

36. I have completed my investigation with a finding of fault causing injustice.

Back to top

Investigator's decision on behalf of the Ombudsman