Decision : Upheld
Decision date : 04 Mar 2019
The Ombudsman's final decision:
Summary: There was no fault in the way the Council changed the parking restrictions on a street. This prevents the complainant, a landlord, from parking outside his properties on the street, but the Council was entitled to make this decision. There was some fault in the Council’s response to his complaints, but this did not cause an injustice. The Ombudsman has therefore completed his investigation.
- The complainant, to whom I will refer as Mr P, says the Council changed the restrictions in a Controlled Parking Zone. He complains the Council did not follow the correct procedures when introducing the changes, and also that he is no longer able to park outside two properties he owns within the zone.
The Ombudsman’s role and powers
- 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)
How I considered this complaint
- I reviewed Mr P’s correspondence with the Council, a Council traffic management order, and documents relating to the changes to the parking restrictions.
- I also sent a draft copy of this decision to both parties for their comments.
What I found
- Mr P owns two properties on the same road (‘the Road’) in the Council’s area, which he lets out. The Road is in a Controlled Parking Zone (CPZ).
- The CPZ originally limited parking to residents only for one specific hour in the morning, and one in the afternoon, from Monday to Friday. This was to prevent commuters leaving their cars in the zone all day.
- There was another nearby CPZ, with parking for residents only from 7am to midnight, Monday to Sunday.
- After receiving petitions from local residents, including those living on the Road, the Council undertook public and statutory consultations with a view to changing the parking restrictions in the area. The Council subsequently decided to proceed with the changes.
- One change was a shift in the boundaries of the existing CPZs. This meant parking on the Road was now for residents only from 7am to midnight, Monday to Sunday. The new restrictions came into force on 2 July 2018.
- In 2016, Mr P had come to an arrangement with the Council to allow him to buy resident visitor permits direct, rather than by asking his tenants to buy them and reimbursing them. He says this was because his tenants had limited English and could not understand how to purchase the permits themselves.
- Mr P says he was unaware of the proposed changes to the CPZ until he picked up a letter delivered to one of his properties in June 2018. By this point, the changes had been agreed and were soon to be implemented.
- Mr P contacted the Council. It agreed to replace his remaining permits for the original CPZ, but warned that he would not be allowed to purchase new ones once they expired, as he was not a resident of the zone.
- On 23 July, Mr P decided to submit a complaint to the Council on its website. He says the online form did not allow him to pick the correct category for his complaint, and so he emailed the Council’s Monitoring Officer instead. The Monitoring Officer forwarded his complaint to officers in the highways department, and to the Councillor with the relevant portfolio (‘the Portfolio Holder’).
- Between 25 and 31 July, Mr P had an email exchange with a Council officer. The officer provided Mr P with copies of the consultation documents and other paperwork associated with the change in the CPZ. The officer wrote that he was sympathetic with Mr P’s situation, and agreed it would be “a way forward” for the Council to review its policy, but that he had no power to do this himself. He suggested Mr P discuss the matter with the Portfolio Holder.
- Mr P emailed the Portfolio Holder on 31 July. He reiterated his complaint about being ineligible to purchase permits for the CPZ. He also complained that he had been excluded from the consultations, and said the Council had failed to take into account the needs of non-English speakers during the consultation process.
- On 9 August, Mr P emailed the Portfolio Holder. He again asked that the Council review the policy, as its current form meant he could no longer work as a private landlord in the borough. He said the Council’s decision was in breach of equality legislation, and that he would consider seeking a judicial review if the Council did agree to change the policy.
- The Portfolio Holder emailed Mr P back on 13 August, saying she would speak to relevant officers to see if a policy change were possible.
- The Council’s parking permit team emailed Mr P on 22 August. It explained that, under the ‘Harrow Places Traffic Order 2005’, resident and resident visitor permits could only be purchased by residents themselves. It said it had made an exception to this in 2016, but had made it clear that it would no longer agree to do this once his current permits expired.
- The team said that, if Mr P had major maintenance work to carry out on the properties, he could apply for a two-week parking dispensation. However, it could not assist him further.
- On 11 September, Mr P responded, asking for a copy of the 2005 Order, as he could not find a copy of this anywhere.
- On 2 October, Mr P referred his complaint to the Ombudsman.
- To introduce a CPZ, a council must make a traffic regulation order (TRO) or traffic management order (TMO) in accordance with the Regulations made by Parliament. (Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996)
- Councils will often undertake informal consultation before deciding whether to create a CPZ. However, once a council decides to do so, it must follow the statutory procedure in accordance with the Regulations.
- The Regulations set out procedures for consultation and dealing with objections to a proposal before a council makes a TRO. It should be noted that the consultation is not a referendum; a council must have regard to the outcome of consultation but is not bound by it.
- Mr P complains that the Council’s decision to change the restrictions in the CPZ is a breach of equality legislation, as it prevents private landlords from visiting their properties. He also complains that the Council’s approach to the consultation was flawed, and that the results did not justify the changes.
- Equality legislation makes it unlawful for organisations to discriminate, directly or indirectly, on the grounds of defined protected characteristics, except where it can be shown to be proportionate to a legitimate aim. However, a person’s employment, such as being a private landlord, is not a protected characteristic. And so, as I understand it, equality legislation has no bearing on Mr P’s complaint.
- In any case, the Ombudsman has no power to make findings on claims of discrimination, as this is a matter for the courts.
- The Council has provided me a copy of the ‘Harrow (Parking Places) Traffic Order 2014’, which sets its policy for the issue or parking permits within its CPZs. The order states:
[Any] resident in any road or part of road listed in … the Schedules to this order … may apply to the Council for the issue of a resident permit in respect of that vehicle and that zone.
[Any] resident in any road or part of a road listed in … the Schedules to this order … may apply to the Council for a resident visitor permit. Resident visitor permits shall be sold in quantities of 10 … A resident visitor permit shall be for the use of visitors’ vehicles for the zone that the resident visitor permit applies. [paragraph 25 (1)(a) and (f)]
- Paragraph 2 of the order defines a resident as:
[A] person whose usual place of abode, the postal address of which is in any street or part of any street listed in … the relevant Schedule to this order for that address, or any other person authorised by the Council.
- And it also defines a ‘business user’, for which there is a similar class of permit, as:
[A] person who occupies premises, the postal address of which is in any street or part of a street described in … the relevant Schedule for that address and uses such premises for non-residential purposes.
- I am therefore satisfied the Council’s policy excludes a person in Mr P’s position from eligibility to purchase a permit. He is neither a resident, nor does he occupy a non-residential business premises, in the CPZ.
- The Council has the right to determine its own policy, and, provided it does not conflict with legislation or statutory guidance, the Ombudsman cannot generally criticise it. It is not for the Ombudsman to determine the Council’s policy.
- And in this case, I can see no reason to question the policy. The law does not give any person the express right to park on the highway. It is for the relevant authority to decide what restrictions to apply. In this case, the Council has decided that only residents may purchase resident permits or visitor permits for its CPZs, and that only non-residential business users may purchase business permits. This is a decision it was entitled to take.
- I am critical of the parking permits team’s email to Mr P on 22 August, where it referred to the ‘Harrow Places Traffic Order 2005’, and said it was because of this order that Mr P could not purchase permits. Mr P questioned this, as he said he could find no reference to such an order on the Council’s website or elsewhere on the internet.
- To confuse matters further, when the Ombudsman made initial queries with the Council, it told us that there was no such order. In fact, it appears there is an order by this (or a similar) name – but upon reading it does not appear relevant to the matter at hand.
- This error has caused some confusion, and unsurprisingly has left Mr P questioning the legal basis for the Council’s refusal to sell him a permit.
- However, although this error amounts to fault, I do not consider it has caused Mr P a substantive injustice. While the Council mentioned an irrelevant policy on 22 August, it still had a valid and relevant policy basis to refuse to allow Mr P to purchase a permit. Nothing significant has been lost by the Council’s error.
- I appreciate that Mr P would prefer to be able to park outside his properties on the Road. However, as I have said, the law does not give him, or any other person, the express right to do so. And I am not persuaded that being unable to park directly outside the properties prevents Mr P from visiting them, or facilitating viewings for potential tenants or buyers, as he says.
- I note there is a small number of ‘shared use’ bays on an adjoining road. These allow parking by either permit, or by purchasing a pay-and-display ticket. The bays are, by my estimation, approximately 250m from Mr P’s properties, and would allow him to park nearby without a permit.
- I note, also, that any tenant of Mr P’s properties would be entitled to purchase resident visitor permits. They are, it appears, allowed to purchase ten books of ten vouchers each per year.
- Mr P says he does not consider it fair to ask his tenants to allow him to use their ration of visitor permits for his visits, but given that they may purchase 100 permits per year, I do not consider this would be an injustice to them.
- Moreover, I note that Mr B was using resident visitor permits before the changes the CPZ, and in fact his complaint to the Council was triggered by the fact he could not purchase more himself. And, while he would now need the tenants to purchase the permits on his behalf, I cannot see why Mr P is unable to continue using this method to park.
- Mr P raises some other issues, which I will address here.
- First, he criticises the Council’s Monitoring Officer for failing to identify what he considers maladministration – specifically, the failure to consider private landlords’ situation – during the consultation process for the changes to the CPZ.
- However, I do not consider there has been maladministration in the Council’s decision to change the CPZ, and so there would have been no reason for the Monitoring Officer to highlight this. While I understand that Mr P feels his situation was not properly considered by the Council, it is not the Monitoring Officer’s role to represent the views of interested parties or objectors during decisions on Council policy.
- Second, Mr P questions the Council’s approach to the public consultation. He said the Council undertook the consultation, despite being aware that it was likely to have a limited response rate, and that it failed to take account of likely language difficulties amongst local residents.
- I do not disagree with Mr P that the response rate was low; this is unfortunate, but it was residents’ own choice whether to respond. The Council had no duty to undertake a public consultation, and so it was for the Council to decide the best format for it.
- And while some residents may have struggled to understand the consultation documents distributed by the Council because of language difficulties, I cannot see any other proportionate way for the Council to have done this. It does not appear practical for the Council to attempt to cater for every possible language need in its area during the consultation.
- I find no fault here.
- However, even if I had found fault in the consultation process, and could say that a higher response rate would have been possible with a better approach, I could not conclude this caused Mr P an injustice.
- To do so would be to assume residents would have voted against the changes, with a higher response rate, but this is highly speculative. It may equally be that more people would have voted for the changes, with a higher response rate; and so the outcome for Mr P would be the same.
- In summary, I have found no evidence of fault in how the Council consulted on or implemented the changes to the CPZ, nor in its policy which disallows Mr P from purchasing permits. There was minor fault when it quoted the wrong order in its response to his complaint, but there is no reason to think this caused an injustice.
- I have completed my investigation with a finding of fault which did not cause injustice.
Investigator's decision on behalf of the Ombudsman