Summary: The complaint is about a council suspending controlled parking zones during lockdown. There is no fault by the Council because it acted in line with COVID-19 guidance issued by London Councils. The Council also acted in line with its hardship policy when refusing to refund Mr X the fee for the period of suspension.

The complaint

1. Mr X lives on a street in a controlled parking zone. He complains London Borough of Barnet (the Council):
1. Suspended the controlled parking zone (CPZ) during lockdown meaning anyone could park in his street
2. Refused to refund the fee for the period of suspension.
3. Disproportionately increased the fee for a parking permit
2. Mr X is a key worker. He works unsociable shifts and says he must drive to get to work. He says the Council’s actions caused him a financial loss, stress and inconvenience and he paid for a service which he did not receive.

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What I have investigated

3. I have investigated complaints (a) and (b). My reason for not investigating complaint (c) is at the end of this statement.

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The Ombudsman’s role and powers

4. 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 relevant legislation and guidance.
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
7. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)

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How I considered this complaint

8. I considered:
• Mr X’s complaint to the Ombudsman
• The Council’s response to my enquiries
• Documents summarised in the next section
9. 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

Relevant law and guidance

10. The Road Traffic Act 1984 allows councils to designate parking spaces on and off the highway, to place conditions on their use and to charge.
11. Parking controls apply to every street in a CPZ. A CPZ is an area where parking is only allowed in marked bays and the remaining space on the kerb has yellow lines. There are signs showing people when they are entering or leaving a CPZ and the restrictions which apply. There is no guarantee of a space in a particular location. London councils have powers to implement parking controls under Traffic Management Orders (TMOs) made under the Road Traffic Regulation Act 1984.
12. TMOs are used where a council wants to introduce charges for on-street parking places including permits. There is a procedure for making a TMO and detailed regulations requiring a council to consult certain bodies and consider any objections. There is a legal right to challenge the validity of an order if someone considers the council did not have the power to make the order or did not comply with the procedural requirements.
13. London Councils Guidance for London Local Authority Parking Management and COVID-19, March 2020, says:
• Enforcement activity should focus on more serious contraventions like obstructive or dangerous parking.
• To help those who are self-isolating, councils should take a practical approach to unlawful parking which is not causing an obstruction, particularly in CPZs.
• Councils should consider providing parking exemptions for key workers, including permit bays in CPZs. How these exemptions are managed will depend on the council’s set up as well as staff availability.
14. The terms and conditions for permits on the Council’s website says a permit holder can cancel a permit and the Council will issue a refund for the remaining number of calendar months left on the permit. The Council also has a hardship policy which allows people who have lost income due to COVID-19, including those on universal credit and other welfare payments, to apply for:
• An extension to an existing permit
• A free permit.
15. The Consumer and Markets Authority (CMA) issued guidance in August 2020, Statement on COVID-19, consumer contracts, cancellation and refunds which applies to central and local government as well as to businesses and traders. The guidance is not an interpretation of the law, but sets out the CMA’s view of the law. Only a court can decide the law. I have summarised relevant parts below:
• Whether or not a consumer is entitled to a refund depends on:
1. The nature of the goods or services
2. The sector
3. The arrangements entered into (including terms and conditions of any contract)
4. The impact of the pandemic and any restrictions on the arrangement.
• Where a contract is partially affected by lockdown, if the service that can be provided is ‘radically different’ to what was agreed then in most cases, consumers should be entitled to a refund. If the service can be provided with minor differences from what was agreed, then in most cases, a consumer would be entitled to an appropriate price reduction in relation to those parts of the service which were not provided as agreed. Cancellation rights would still apply.

What happened

16. The Council’s environment committee approved increases to parking permit charges in March 2019. The Head of Parking’s report to members explained the aim was to encourage residents to use low-emission vehicles in order to improve air quality. The proposed charges were to introduce new permit categories in line with DVLA classes. Following the changes, cleaner vehicles would attract a lower fee. This was in line with the Council’s air quality strategy.
17. The Council made an amendment to the existing TMO (The Barnet (Charged-For Parking Places) (Amendment No 65) Order 2019) in September 2019 and published notices in the London Gazette and local press. The notices explained the order would implement new resident permit categories similar to DVLA categories used to calculate road tax rates. The notices explained the right to appeal to the High Court and copies were available in the Council’s offices.
18. Mr X applied to renew his parking permit in November 2019. He emailed an officer asking for her to explain why the fee had increased so much. The officer responded saying the increase happened in September following a decision by members in March 2019 and the aim was to incentivise the use of cleaner vehicles to improve air quality.
19. The Council suspended enforcement of the CPZ parking bays at the end of March 2020 at the beginning of the first national lockdown. The Council updated its website to reflect this and placed a recorded message on its parking contact centre to say lines had closed temporarily.
20. At the end of May, the Council emailed all permit holders to say enforcement of the CPZ would restart in the first week of June. The email explained the Council had suspended enforcement to assist those unable to obtain permits or visitor vouchers due to the pandemic. It explained people could contact the parking team if they had exceptional circumstances and needed advice and assistance and gave an email for people to use.
21. The Council’s responses to Mr X’s complaint said:
• It relaxed parking enforcement temporarily to protect enforcement officers and to allow keyworkers and people shielding and self-isolating to park where otherwise they would not have been able to obtain a permit or concession to park.
• Its actions were in line with guidance from London Councils.
• Parking wardens continued to work during lockdown and issued tickets to those parking dangerously or causing obstructions.
• Residents could and can cancel their permits at any time using the on-line permit account or by contacting the Council. Requests for cancellations and refunds were actioned during lockdown although response times were slower than usual because the contact centre was closed and so there was a backlog
• It was not feasible to suspend all permits as this was a manual process requiring officers to amend dates on each permit and officers of the team were moved to other roles like distributing medicine to those self-isolating.
• The Council emailed permit holders at the end of May to tell them parking controls would take effect again in the first week of June.
• The parking team had been dealing with requests for help with permits due to financial hardship and had actioned requests and extended permits. Mr X had not explained why he suffered hardship and so there were no grounds to offer a refund or to extend the permit.
• The Council was not obliged to take all steps at any cost to rectify the impact of the pandemic and the lockdown on people. It had to balance expenses and so decided not to extend permits or process refunds for everyone.
22. Mr X told us he received a refund equivalent to the cost of 11 weeks of the yearly permit from his bank after disputing the transaction with his bank (around £24). He says he should not have had to go to his card provider because the Council should have refunded him.

Is Mr X’s complaint one we can investigate?

23. Our role is to investigate complaints where a person may have suffered an injustice: we define injustice broadly and it may include a financial loss, inconvenience and avoidable stress or anxiety. Mr X suffered no financial loss because he received a partial refund of the permit from his bank. The inconvenience and stress caused by less availability of parking close to his home than might usually be available is not serious enough to justify an investigation on its own. I have, however, investigated two of Mr X’s complaints because there may be other Barnet residents affected by injustice who have not complained.

Was there fault?

The Council suspended the controlled parking zone (CPZ) during lockdown meaning anyone could park in Mr X’s street

24. There is no fault in the Council providing a reduced parking service during lockdown. I am satisfied the Council considered guidance from London Councils (see paragraph 13) which suggested focusing on obstructive or dangerous parking and allowed councils to put in place temporary exemptions to normal parking rules and charges. I accept the measures the Council put in place favoured some and disadvantaged others, but the Council had to balance the needs of different groups and its staff during a national crisis. It did so in line with published guidance and so there is no fault.

The Council refused to refund the fee for the period of suspension

25. Guidance from the CMA on refunds during COVID-19 is relevant and applicable because parking enforcement was affected by lockdown and so permit holders who had paid for a service, were also affected. I consider the changes to service during the first lockdown were minor because enforcement activities continued around obstructive and dangerous parking in the CPZ. In the case of a minor difference in service, the CMA suggests a price reduction would be appropriate in most cases. However, it does not say a price reduction is mandatory. In this case, applying points (a) to (d) in the CMA’s guidance (see paragraph 15), I have decided that there is no fault in the Council’s decision not to offer a refund. I have taken into account:
• (a) The nature of goods or services: Possession of a permit doesn’t entitle the holder to a particular space in a particular location, even though Mr X may always have been able to park in his road, or close to his road, before the change. Having a permit doesn’t entitle Mr X to a space at all, it only gives him the right to park somewhere in the zone. There is no evidence Mr X was unable to find a parking space within the zone.
• (b) The sector: The Council is a public body running an enforcement service which attracts costs, rather than a private body providing a service for a profit. There is no evidence the Council’s costs reduced as a result of the temporary relaxation of enforcement.
• (c) The arrangements entered into (including any terms and conditions of any contract.) The Council publicised the change to the service on its website and permit holders retained existing rights to cancel their permit.
• (d) The impact of the pandemic and any restrictions on the arrangement. London Councils guidance, which the Council also followed, set out recommended changes to enforcement to protect the welfare of its staff and to divert resources to support other key groups.
26. The Council introduced a hardship policy which sets out measures to help people who have lost income due to COVID-19. The Council advised Mr X in its complaint response that he had not provided evidence of hardship and so it could not assist him. This is in line with its published policy so there is no fault.

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Final decision

27. The complaint is about a council suspending controlled parking zones during lockdown. There is no fault by the Council because it acted in line with COVID-19 guidance issued by London Councils. Although the Council did not refund Mr X when he asked, there was no fault because:
• CMA guidance did not require the Council to refund in all cases.
• It acted in line with its hardship policy when refusing to refund Mr X the fee for the period of suspension.
28. I have completed the investigation.

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Parts of the complaint that I did not investigate

The Council disproportionately increased the fee for a parking permit

29. Mr X says the increase was not fair, consistent, proportionate or in line with price rises to other council services. We normally expect people to use a right of appeal where one exists. As the Council gave the required notice in the relevant press publications and set out the statutory right of appeal and the timescale to appeal, I consider it reasonable for Mr X to have challenged the TMO in court. So I have not investigated this complaint.

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Investigator's decision on behalf of the Ombudsman