Summary: Ms X said the Council wrongly stopped her parking permits. Ms X said this was unfair for age and health reasons and caused distress. We found fault in how the Council reached its decision to stop renewing Ms X’s parking permits under a traffic regulation order. The Council agreed to apologise to Ms X for the distress caused and to issue a permit pending its review of the order.

The complaint

1. Mr Z, acting for Ms X, said it was wrong that, after 20 years, the Council refused to renew her visitors parking permit saying it had issued previous permits in error. It was unfair to not renew Ms X’s permit when the Council had recently renewed permits for other nearby properties.
2. Mr Z said that age and health related reasons meant Ms X needed a parking permit. And, to avoid further distress, the Council should change its records to ensure Ms X’s home was eligible for a permit.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We may investigate complaints made on behalf of someone else if they have given their consent. Here, Ms X has given her written consent for Mr Z to act for her in making this complaint. (Local Government Act 1974, section 26A(1), as amended)
5. 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

6. I:

• considered the written complaint and supporting papers provided by Mr Z;
• talked to Mr Z about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint; and
• shared a draft of this statement with Mr Z and the Council and considered any comments received before making a final decision.

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What I found

Background

7. Councils have powers to make traffic regulation orders (TROs) to regulate and control traffic, including restricting on street parking. Councils must follow a detailed legal procedure to introduce a TRO. The procedure includes publicising the proposed traffic and or parking restrictions and considering peoples comments and objections to the proposals. Once made, people have six weeks to challenge the legality of a TRO.

What happened

8. Over 20 years ago the Council made a TRO to introduce a controlled parking zone (‘the Order’). The general effect of the Order was to prevent people parking on streets covered by the controlled parking zone unless they had a residents or visitors parking permit.
9. The Order described the controlled parking zone by referring to an area bounded by, but excluding, named roads. Ms X’s home was on a corner with roads on two sides. Her postal address included the name of an excluded boundary road. The Order listed the other road next to Ms X’s home as a road where, to park, you needed a permit from the Council. The Order also referred to ‘parking places’, meaning where on the listed roads you could park in a marked parking bay.
10. The Order gave the Council discretion to issue visitors permits. And to be eligible for a visitors permit, the Order said, in summary, an applicant must satisfy the Council they:

• use as their principal place of residence a property fronting or sufficiently proximate to a resident's parking place;
• have no suitable parking provision within a reasonable distance of the property; and
• need a permit for use by a non-resident who is the owner of a car.

11. Ms X applied for and received 12 monthly visitor parking permits until 2022. The Council then told Ms X she was not eligible for a permit, and it had issued the earlier ones in error. However, to give Ms X time to make alternative parking arrangements, the Council gave Ms X a final visitors permit for 12 months. The Council said it noticed the error when it changed its arrangements for issuing permits. The Council said Ms X’s home was not the only property affected. All those affected now knew it would not renew their permits, the last of which would expire during 2024.
12. In the correspondence that followed, Ms X said her home was eligible for permits as it was within the Order area as shown on a map on the Council’s website. The Council said the Order defined eligibility for a permit. The map was for illustrative purposes and the website also showed a list of eligible properties. To be eligible for a permit, a resident’s address had to be on the list and Ms X’s address was not. The Council apologised but said wrongly issuing permits in the past could not justify it continuing to do so.

Summary of the Council’s response to the Ombudsman enquiries

13. The Council said TROs used postal addresses to decide eligibility for permits. This applied even if a property had a wall or windows fronting a road controlled by a TRO but a postal address for a road that was not. Here, the Order was clear the road in Ms X’s postal address was not in the controlled parking zone. As Ms X’s home had a postal address for an excluded road, it was outside the Order and not eligible for a permit. Ms X therefore could not, under the Order, be considered as living ‘proximate’ to a parking place (see paragraph 10). The Council also said that people could comment on proposed restrictions before TROs were introduced (see paragraph 7).

Consideration

14. Ms X’s home is physically ‘within’ the controlled parking zone but has a postal address for an ‘excluded’ road. Ms X, seeing her home as ‘within’ the zone, believed she was eligible for a permit, and received permits for many years. So, the question was whether the Council had been at fault in issuing permits until 2022 or was now at fault in not issuing those permits. If the Council was at fault in issuing the earlier permits, its refusal to issue further permits would not cause Ms X significant injustice. This is because Ms X would have benefited from that fault by accessing parking bays in the controlled parking zone while ineligible for a permit. So, the key issue was whether the Council was at fault in telling Ms X it would stop issuing visitors’ permits after her 2022 permit expired.
15. The Council says it is common practice to interpret eligibility for permits under TROs by using postal addresses. So, to be eligible, an applicant needed a postal address that matched a road with parking restrictions under the TRO. Here, the Order used ‘parking place’ to describe where people needed a permit to park. And the Order included a list of roads with ‘parking places’. There was no dispute the road in Ms X’s postal address was not an Order road with ‘parking places’ or listed on the Council’s website. Therefore, on the Council’s interpretation, it could say Ms X was not eligible for a permit. So, was that the correct way to interpret the Order?
16. The Council referred Ms X to the Order and its website as ‘listing addresses’ of affected properties. However, the Order does not set out individual postal addresses although the website, for one listed road, does refer to house numbers. The Order says an applicant’s home should ‘front or be sufficiently proximate to a parking place’ (see paragraph 10). The reference to ‘parking place’ links to the listed roads where a permit is needed to park. So, there is a link between an applicant’s home and the listed roads. But neither the Order nor the website clearly state that permit eligibility rests on the applicant having a postal address that matches a ‘parking place’ or listed road.
17. I did not find, and the Council did not refer me to, any legal basis for interpreting TROs by reference to a postal address. Reading the Order as a whole and giving words their normal meaning, eligibility for a permit needed an applicant’s home to ‘front or be sufficiently proximate’ to a parking place. So, the Order needed the Council to consider if Ms X’s home ‘fronted or was sufficiently proximate’ to a parking place. I was not persuaded interpreting the Order in any other way could properly and reasonably be justified.
18. The Council said (see paragraph 12), the Order decided eligibility for a permit. The evidence showed the Council found Ms X ineligible because of her postal address. It therefore appeared the Council did not correctly use its discretion as it did not consider whether Ms X was an applicant living ‘sufficiently proximate’ to a parking place. Without evidence the Council properly exercised its discretion, I found it reached its decision, that Ms X was not eligible for a permit, with fault. (The Council disagreed.)
19. In summary, the Order made clear the Council had discretion to issue permits (see paragraph 10). The Order decided permit eligibility and made no reference to postal addresses. On balance, reading the Order as a whole, I found the Council’s interpretation, which imposed a postal address rule, unsustainable. I therefore found the Council acted with fault in handling Ms X’s application for a visitors permit after 2022. Ms X would likely be caused avoidable frustration and distress by the Council’s decision not to issue further permits after 2022. I therefore also found the fault I identified caused Ms X injustice.

Summary of the Council’s response to the draft decision statement

20. The Council recognised the Order predated its current practice and procedure for making TROs. It now included addresses of properties covered by parking schemes in TROs and on its website to put permit eligibility beyond doubt. In not doing so for the Order, and in using the phrase ‘fronting or sufficiently proximate’, the Council accepted it could be interpreted as set out in paragraph 17. However, it said this was not how it intended the Order to be interpreted.
21. The Council repeated that Ms X’s legal address was for a road specifically excluded from the Order. But it accepted the Order wording had caused confusion. While the Order wording gave it discretion to issue permits, it was unreasonable to expect such discretion to apply to properties on excluded roads. It had never intended to include Ms X’s property in the Order permit scheme. So, it did not accept if had failed to properly consider Ms X’s eligibility for a parking permit.
22. However, accepting the Order was unclear in its interpretation and had caused confusion, it would review it before further deciding Ms X’s eligibility for a permit. A formal review would need public consultation, which Ms X, like other residents, could take part in. As a formal review would take time, it would issue Ms X with a permit until the review was complete and any revised TRO took effect.

Conclusion

23. The Council firmly disagreed with my interpretation of the Order. I therefore thanked it for its positive and practical approach and proposal for moving matters forward and resolving the lack of clarity in the Order. The agreed actions in paragraph 24 reflect the Council’s position. They now ensure Ms X will receive a visitors permit while the Order is reviewed. The review should ensure any revised TRO is clear about eligibility for permits. Ms X may, with other residents, comment in response to the public consultation on the Order review. And, once any revised TRO takes effect, its clarified terms about permit eligibility, will apply to all residents, including Ms X.

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Agreed action

24. To address the injustice identified at paragraph 19, the Council agreed:

• (within 10 working days of this statement) to apologise to Ms X in writing for the avoidable distress and frustration she experienced arising from the lack of clarity in the Order wording; and
• (within a calendar month of this statement) to issue Ms X with visitor parking permits until it has completed and implemented its Order review.

25. In making the apology referred to in the first bullet point to paragraph 24, the Council agreed to refer to the Ombudsman’s ‘apology checklist’ at: Guidance on remedies - Local Government and Social Care Ombudsman. The Council also agreed to send us evidence it had complied with the recommendations set out at paragraph 24. For each recommendation, the Council would provide the evidence to the Ombudsman within 10 working days of compliance.

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Final decision

26. I completed my investigation, finding fault causing injustice, on the Council agreeing the recommendations at paragraphs 24 and 25 of this statement.

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Investigator's decision on behalf of the Ombudsman