Summary: Mr X complained the Council did not reduce the fees charged to marina users during the COVID-19 national lockdown. Mr X was unable to use his boat as often and was affected financially. The Ombudsman found the Council was not at fault and was entitled to make its decision.

The complaint

1. Mr X complained the Council did not reduce the fees charged to marina users during the COVID-19 national lockdown when boat owners could not access or use their boats. He is also unhappy about a lack of communication from the Council.
2. He also complained the Council provided a reduced service to boat owners when lockdown measures were eased, as it did not have as many bridge openings as normal.
3. Mr X and other marina users were affected financially by the Council’s decision not to reduce its fees. They have also been unable to use their boats as often because of fewer bridge openings.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with a council’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)
6. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.

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How I considered this complaint

7. As part of the investigation, I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Council’s Harbour Berthing Conditions
• The Council’s Harbour Dues and Charges
8. Mr X 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

9. Owners need a licence from the Council to moor their boats in a harbour. Under the terms of the licence, owners agree to pay the Council’s fees.
10. The first fee is a harbour due, which is calculated based on the size of the boat and is an annual charge.
11. The owner must also pay for a mooring berth in the harbour’s marina. The mooring fees are split between the summer and winter months. Owners must pay the mooring fee for the summer months, even if their boat is not moored in the harbour. Owners can take their boats out of the harbour for the winter months to avoid paying mooring fees.
12. Owners who take their boat out of the harbour can ask the Council to store them in the Council’s marina car park. The Council charges a storage fee based on the size of the boat.
13. The Council performs scheduled bridge openings several times each day to allow owners take their boats out to sea. In previous years, the Council has agreed to perform extra bridge openings in the summer months so owners can make more use of their boats.

What happened

14. Mr X keeps a boat in the Council’s marina. He is also a member of a local boat owners’ group.
15. On 23 March 2020, the government announced a national lockdown to reduce the spread of COVID-19. This meant people had to stay at home and could only go out for essential reasons.
16. The Council closed the slipway leading to the marina on 28 March and would only allow access on request and if a customer had an essential need to get their boat into the water. At that time, Mr X’s boat was moored in the marina.
17. The Council wrote to marina customers on 31 March to update them. It supported the government’s stay at home message but said it intended to maintain the most complete service possible. Marina facilities were open for customers who lived on their boat, but the Council told others they should not attend. The Council said watchkeepers would keep a 24/7 port service and inspect pontoons regularly.
18. The Department for Culture, Media and Sport published guidance on the return of sport and recreation on 13 May. This included advice on water sports, which could restart. It also confirmed marina operations could resume, subject to health and safety guidance. It was for individual marina owners to decide when it was safe to restart services.
19. The Council sent further updates to customers on 13 and 14 May when the government eased lockdown restrictions. It said customers could visit their boats in the marina and take them out, but not stay overnight.
20. The Council reopened the marina slipway on 1 June, meaning owners who had taken their boats out for winter could put them back in the water again.
21. Mr X wrote to the Council on 27 June asking for a discount on the harbour berthing fees. He said members of the boating association were unhappy that, while some local marinas reduced their fees due to COVID-19 closures, the Council had not. Mr X also said the Council closed the marina for two months and provided no services. The situation was worse for owners who took their boat out of the water for winter and had to pay extra storage costs because they could not put their boats back in the water. Mr X said members felt exploited when they heard the Council offered refunds to beach chalet owners. He suggested the Council only charge the winter fees for April and May. He also asked for more bridge openings to start straight away so owners could make greater use of their boats.
22. Mr X did not receive a response from the Council, so he made a formal complaint on 12 August.
23. The Council responded on 8 September and apologised for the delay. It said:
• It contacted harbour customers when lockdown started, to support the government’s ‘stay at home’ message, and to assure customers about added inspections and staff checks during lockdown.
• It did not prevent owners from accessing their boats, berths, or marina facilities. It erected signs at access points asking owners to consider if their visit was essential.
• If owners decided it was essential to visit or launch their boat, and this was within government guidelines, they could arrange it with the Council by prior appointment.
• It provided more patrols to make sure customers boats were safe and secure.
• Most boats stayed in the harbour during lockdown and the Council’s staff looked after them.
• Under its berthing conditions, owners must still pay harbour fees and summer mooring fees even if their berth is unoccupied. The berthing licence provides a space in the harbour, not services.
• It could not provide more bridge openings that season, due to safeguarding risks around spread of COVID-19.
• Its executive management team considered the harbour fees and decided to extend payment terms to allow struggling customers more time to pay. That decision was final.
24. The government lifted lockdown restrictions on 4 July, including about staying overnight on boats. The Council wrote to owners to confirm this on 7 July.
25. Mr X was unhappy with the Council’s reply. He asked it to reconsider on the basis the Council treated boat owners different from chalet users, and the Council saved money by providing a reduced service. He said the harbour fees were to pay for passage through the harbour, including bridge openings, and maintenance. He said they must also cover administrative and staff costs. He also said owners pay marina fees to use the Council’s pontoons, and this must include pontoon maintenance and facilities, water, and electricity.
26. The Council sent its final complaint response on 28 September. It said it reviewed the relevant berthing terms and conditions, policies, and harbour procedures and was satisfied with the responses it had given.
27. Mr X brought his complaint to the Ombudsman on 21 October 2020. He felt the Council discriminated against marina users and he wanted a discount on the fee he paid for the period he could not visit his boat.

Response to my enquiries

28. The Council told me it did not prevent owners from accessing their boats, berths, or marina facilities at any time and the harbour functioned throughout lockdown.
29. It received many requests from owners asking if they could attend or launch their boats and it gave advice in line with government guidance. The Council said it was not its responsibility to say whether a visit was essential, but some owners did visit their boats during the lockdown period. While the Council chained the slipway into the water, it allowed access on request.
30. The Council said its berthing licence is for a space in the harbour, not services. Payment of harbour and mooring fees applies regardless of whether a berth is occupied. This is confirmed in the berthing contract.
31. Throughout lockdown, the Council told me it provided increased harbour patrols to ensure boats were safe and secure. Harbour staff dealt with issues such as pumping water out of boats, providing electricity, adjusting mooring ropes, and securing canopies. They also looked into concerns raised by owners.
32. The Council said it provided normal bridge openings during lockdown and summer. The extra summer openings are on top of normal openings and the Council is not under a duty to provide them. It told me the bridge is a main pedestrian and traffic route. It considered more bridge openings would pose an unacceptable COVID-19 transmission risk as crowds gather at both sides when the bridge opens.
33. The Council does not consider there are direct comparisons between beach chalet users and marina users. Few beach chalets were in place before the pandemic, whereas most boats were in the harbour using their berth. No harbour staff were furloughed, and more patrols were in place. Marina users have an annual contract clearly confirming fees are due regardless of using their berth.
34. The Council’s Executive Management Team (EMT), which is made up of the chief executive and three directors, had urgent decision-making powers because of COVID-19. Minutes are not taken at EMT meetings, but officers were verbally told about their decision not to reduce harbour fees.

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Analysis

35. The Council was following government guidance when it told marina users they should not attend. Mr X said the Council provided a reduced service and the marina was closed for two months. The Council, on the other hand, said customers could access their boats on request, and staff provided more patrols to make sure boats were safe. It also said the fees paid by customers does not include services.
36. The Council does not have a duty to reduce fees charged to marina users. I have seen nothing in the relevant terms and conditions which says the Council provides customers with any services beyond their mooring berth and access to the harbour. The Council did not simply refuse Mr X’s request for a refund. It gave reasons, as outlined above, and I have not seen any evidence of fault.
37. Government guidance meant Mr X, and other customers, could not enjoy the use of their boats during the lockdown period in any event. While I appreciate some customers could not visit their boats to maintain them or put them back into the water if they were in storage, that was not because of any fault by the Council.
38. Generally, the Council updated marina users quickly about developments in government advice. However, the Council could have given more information about access to the marina and slipways. It told me it would allow access on request if it was essential, but its general message to users was to stay away. The Council did not mention allowing essential access in any of the updates I have seen. While this was not best practice, I consider it falls short of fault.
39. Under normal circumstances, the Council would agree to provide added bridge openings in the summer months. Mr X told me this was agreed with the Council in advance. Due to the risks associated with COVID-19, the Council decided it was not safe to have more bridge openings in summer 2020. That is a decision the Council was entitled to make, and I have seen no evidence this was not properly considered.
40. Mr X feels marina users are entitled to a discount because the Council did not provide extra bridge openings. He said it saved money by not doing so. On the evidence seen, this was an added service which the Council was not under a duty to provide. While Mr X may consider the decision unfair, I have not seen evidence to say the Council was at fault and it is therefore not for the Ombudsman to consider the merits of the decision.
41. I can understand why Mr X thinks the Council treated marina users differently, but it had to consider all relevant circumstances relating to the harbour. It did not have a duty to refund marina users just because it refunded chalet users. Mr X may disagree with the approach, but I have not seen evidence of fault and the Council gave reasons for its decision. The fact beach chalet users got a discount is not in itself an injustice to Mr X or marina users.
42. The Council was slow to respond to Mr X’s complaint. It did not respond to his letter of 27 June and did not respond to his complaint until he tried to escalate the matter. That was not good practice. The Council apologised for the delay in responding to Mr X’s complaint, and this did not result in any significant injustice as it did provide a full complaint response.
43. Mr X’s boat remained moored in the marina throughout lockdown. However, he raised the issue of storage fees in his capacity as member of a local boat owners’ group. He said some users had to pay storage fees and marina berthing fees until lockdown restrictions were lifted.
44. While the Council said customers could ask for permission to put their boat into the water if there was an essential reason, as per paragraph 37, this was not explained in any of the Council’s update letters.
45. Under the terms of the berthing contract, users must pay the summer fees regardless of whether their boats are in the marina. However, as far as I am aware, no such contract exists for storage fees in the Council’s car park. The Council could therefore exercise discretion and refund storage fees to affected customers. That is a matter for the Council to consider on an individual basis. It is not for the Ombudsman to tell the Council it should or must offer refunds in situations where no fault has been found. As above, Mr X was not affected.

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Final decision

46. I have completed my investigation. I did not find fault when the Council refused to reduce the fees charged to marina users during the national lockdown. It was therefore entitled to make its decision.

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Investigator's decision on behalf of the Ombudsman