Summary: Mr X complained the Council unfairly charged him for his market pitch. He said the Council charged him more than other traders who have similar sized vehicles. The Council was at fault. It did not charge all vehicles in line with its policy which caused Mr X frustration and time and trouble. The Council has agreed to apologise to Mr X, confirm it has written off his arrears and confirm to him and other traders, in writing, what the correct charges are and when they will apply from.

The complaint

1. Mr X complained the Council had unfairly charged him for his market pitch. He says he is charged more than other traders who have similar sized vehicles. In addition, the Council said it had addressed any discrepancies in charging, but Mr X says this has not happened. Mr X says this has caused him frustration and time and trouble and means he is expected to pay more for his pitch than is fair.

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The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with an organisation’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)

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How I considered this complaint

4. I have considered the information provided by Mr X and discussed the complaint with him. I have considered the information provided by the Council in response to my enquiries.
5. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

6. Mr X trades from a vehicle at a market in the Council’s area. His vehicle is just over 6m long. Each pitch at the market is 3m by 3m with set costs per pitch. The charges are set out on the Council’s website. The website states there is no commitment, legal or agency fees and no turnover rent for the pitches. The fees are paid on line or by card.
7. In March 2022 the Council says it became aware some traders were taking up more space than they were paying for. It measured those pitches and readjusted the charges. Mr X contacted the Council as he was unhappy his charge was increasing. He said there was a disparity in the charges. Mr X said he was being charged for two pitches but other traders with similar sized vehicles were only charged for one and a half pitches.
8. The Council responded to Mr X’s concerns at the first stage of its complaints process in April 2022. It said it had investigated Mr X’s concerns and found over half the traders were paying the appropriate fee. Several traders were occupying larger pitches but only paying for a single 3m by 3m pitch. It said when it became aware of the problem it wrote to those occupying more than one pitch asking them to reduce their pitch size or pay the correct fee. It said it was not intending to backdate the charges.
9. Mr X remained unhappy as he had spoken to other traders and was aware others were still being charged less than he was. The Council responded in May 2022. It said from March 2022 it was charging all traders for the pitches they occupy. It was willing to remeasure Mr X’s vehicle or other vehicles on request.
10. Mr X requested a meeting with a senior officer. He asked for his pitch to be remeasured and clarification that all pitches would be remeasured. He said other traders were still being charged for one and a half pitches whereas he was charged for two pitches and he had evidence of this. He said he would only pay for one and half pitches while the dispute was being resolved.
11. A senior officer emailed Mr X in June 2022 and said the remeasurement in March 2022 identified some mistakes not all of which had been rectified. It apologised for this and said it would undertake a remeasure to make sure traders were charged the correct fee for the space they occupied. It said it would not ask anyone to pay arrears prior to 1 April 2022.
12. In June 2022 the National Market Traders’ Federation carried out a remeasurement of the market pitches. This identified four traders who were being charged less than the space they occupied.
13. In an email to Mr X in October 2022 a Council officer said they would continue to charge Mr X for two pitches and that other traders would have their charges increased. Mr X has continued to pay for one and a half pitches which he says is in line with what other traders with similar sized vehicles are still paying.
14. In response to my enquiries the Council confirmed the charges are per 3m by 3m pitch or multiples thereof. Pitches of 4.5m length are charged one and a half times the rate.
15. The Council confirmed it had measured Mr X’s vehicle which was just over 6m long. He should therefore be paying for two pitches. It said some of the vehicles were measured incorrectly which led to a disparity in what people were paying. When it identified, in June 2022, other vehicles were paying less than they should it did not adjust their charges at the time. It said it decided to wait until Mr X’s complaint was resolved. It has now decided to implement the revised charges from April 2023 and will not seek any arrears from Mr X or other traders affected.

Findings

16. From March 2022 the Council was charging Mr X the correct rate, in line with its policy, for the size of vehicle he uses. However, the Council was not charging all traders at the market in line with its policy or its published rates. This was fault. The failure to ensure it charged consistently across the market was unfair and caused Mr X frustration. When the Council responded to Mr X at stages one and two of its complaints procedure, it failed to acknowledge this discrepancy still existed adding to Mr X’s frustration and causing him additional time and trouble in continuing to pursue the matter.
17. In June 2022, following the independent remeasure, the Council confirmed a discrepancy existed but it did not act as it said it was waiting to resolve Mr X’s complaint. This has added to Mr X’s frustration as the disparity in charging has continued.
18. Mr X has continued to pay for one and a half pitches rather than the two he should be charged for. The Council has agreed not to pursue Mr X for any arrears but to introduce the new charges for all affected vehicles from April 2023. This is an appropriate way to resolve the complaint and remedies any injustice caused to Mr X.

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Agreed action

19. Within one month of the final decision on this complaint the Council has agreed to write to Mr X to apologise for the frustration and time and trouble he was caused by the Council’s failure to charge consistently for pitches at the market. It will confirm it will not pursue Mr X for any arrears and set out in writing the date from which the new charges apply.
20. The Council has also agreed, within one month of the final decision, to write to all traders at the market so they are aware of what the correct charges are and when they will apply from.
21. The Council should provide us with evidence it has complied with the above actions.

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Final decision

22. I have completed my investigation. There was evidence of fault by the Council causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman