2018-19 case summaries

This page includes summaries of completed investigations and will be updated as cases are completed

Case No 1025 – complaint by the Wide Boat Action Group about the conduct and outcome of the Trust’s licensing policy review

The Wide Boat Action Group (WBAG) complained that in conducting its recent licence review, including the public consultation, the Trust exceeded its statutory powers as set out in the Transport Act 1962, and did not act in line with its own requirements as set out in its governance documents, with the result that the review, and its outcome, was flawed.

The case hinged on the interaction between policy and process. As an Ombudsman I cannot determine or influence the Trust’s policies, but WBAG argued that the way the review was carried out was fundamentally flawed, and that as a result the outcome was unfair in the way that it affected owners of widebeam boats.

The review was the first on the structure for licence fees carried out for at least 20 years, and was prompted at least in part by representations from various boating interest groups.

Licence fees are currently based on length alone, but the key outcome of the review was that the Trust decided it would increase premiums for boats wider than 2.16m (7’ 1”). Boats up to 3.24m wide would be charged 10% more than the standard fee, while boats wider than that would be subject to a 20% premium. The Trust proposed to introduce the extra charges in four equal steps between April 2020 and April 2023.

At the earlier stages of the review WBAG had wanted the Trust to consider other issues, such as the limited accessibility of the network to wide boats, the lack and inaccessibility of facilities, as well as moorings and winter moorings and a range of other issues.

WBAG disagreed with the outcome of the review, and that the other matters which it asked to be considered were not included. It argued that wide boat owners had been unfairly represented in the consultation process, and that the Trust had had the opportunity to ensure that they were more fairly represented but opted not to do so. WBAG felt that the Trust had contrived the review in such a way as to ensure that narrower boats were favoured over wider boats.

I accepted that wide boat owners were less well represented in the consultation, as a proportion of the total number of wide boat owners, than were owners of other boats, but I did not accept that under-representation was the same as unfair representation. The Trust had invited licence-holders to respond, and so to a large extent the respondents were a self-selecting group. WBAG argued that the Trust should have ensured that all types of boats were equally well represented, but the Trust pointed out that it was not a vote. I noted that there were still around 390 wide boat owners involved in the process, which would probably have covered a broad range of views. I also noted that even if it had been a vote, wide boat owners would still be in the minority.

In respect of the limited access to the network, WBAG felt that this should be reflected in the licence fee. It disagreed that the licence was in effect a permission, and should be related to availability, but the law does seem to regard it as a permit and included no reference to usage. WBAG also argued that the Trust was not able to determine charges in the way it “thought fit”, but the law does state that the Trust may set charges in a way it thinks fit. I did comment that this did not mean that it could make changes arbitrarily and without basis, but I did not reach the conclusion that it had.

In essence, WBAG argued that both the review process and its outcome were flawed. I accepted that some of WBAG’s concerns might be legitimate, but said that the review and its content was a matter of policy for the Trust and I could not have required it to include the range of topics that WBAG wanted. In my report I neither agreed nor disagreed with the outcomes of the review, but stated that the Trust’s policy was outside my jurisdiction.

I said that disagreement with the outcome could not be regarded as indicating that it was unfair. I did not reach the conclusion that there had been maladministration in the conduct of the review, and I did not uphold the complaint.

WBAG also made the argument that in carrying out the review the Trust had acted on complaints from boating groups. It questioned how those complaints could lead to a change in policy, but that WBAG was unable to complain about the changes in the policy. I said that it depended on the definition of a complaint, and whether it was a complaint about maladministration or a policy issue. The Trust is not compelled to consider a complaint (however it is phrased) about a policy issue, but if it does so, as in this case (for example because considers that policy changes are appropriate), then it is not compelled to consider a complaint about the revised policy.

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Case No 1012 – complaint by a boater about the Trust’s refusal to accept that she had a home mooring, and subsequent events

Ms D had a mooring, declared as a home mooring, which she cancelled on securing a mooring elsewhere. Although she did inform the Trust that she left her old mooring to move to a new one, she didn’t state where it would be. Internal correspondence from the Trust shows that some three months later it was under the impression that although Ms D had won a mooring in an online bid, she was not using it. Shortly after that, and after a review of the boat’s movements, the Trust wrote to Ms D, saying that on the basis of her cruising pattern she would not be offered a further licence as a continuous cruiser (“CCer”). Ms D immediately replied to say that she did have a home mooring and that she had never been a CCer. It seemed that Ms D’s mooring was acceptable as a home mooring, but it had not been included in the Trust’s register (although an adjacent mooring was).

Although Ms D did not complain to the Trust about the situation at the time, she was very unhappy about a number of issues, including why the Trust had not followed its recommended guidance about notifying boaters about unsatisfactory cruising patterns, how it made an assessment of her boat movements despite there being many gaps, and why the Trust had not apologised for its failures.

In its responses the Trust said that in the gap between Ms D leaving one mooring, and her next mooring being included on its register of moorings, it had recorded her as MAC (mooring awaiting confirmation), and in line with its terms and conditions it had treated her as a CCer.

The case raised issues about the frequency and completeness of sightings, and how the Trust dealt with a situation where it was unsure of a boat’s mooring status. Ms D also complained about what she regarded as a derogatory language in the Trust’s internal documents (which she had obtained following a Subject Access Request).

There were gaps in the sightings, particularly for a period of a few weeks when Ms D undertook a long journey, part of which was on non-Trust waters, and there were also periods where there were frequent sightings in popular areas. I did ask the Trust about how it managed sightings, and it explained that the frequency may vary according to location. The Trust does advise boaters to keep their own logs, in the event that this may be needed to fill in gaps. I do not in any case have any influence over how it manages its sightings.

There had clearly been some confusion about Ms D’s mooring location, which was corrected, but in the meantime the Trust had, after leaving one voicemail message, written to her to say that she would not be offered a new CC licence unless she got a home mooring. The Trust did say it was reviewing its processes to ensure that the relevant verification steps were followed at an early stage where it was unclear about a boat’s mooring status.

The Trust had apologised for shortfalls in service, and offered Ms D a goodwill award of £50. I broadly agreed with the Trust’s own conclusions, but felt that the award offered did not fully reflect the problems, and increased it to £100, which Ms D accepted. I did not, however, conclude that the language in the Trust’s internal documents could reasonably be regarded as derogatory.

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Case No 1000 – complaint about the Trust’s refusal to recognise a canalside property as a legitimate home mooring

Mr C, a liveaboard boater, has for several years owned a piece of land next to a canal, which he wished to use as his declared home mooring for boat licensing purposes. For a number of years he had given the name of a nearby marina as his home mooring, but in 2017 the Trust questioned whether this was a legitimate location, and the only way Mr C was able to license his boat was to declare himself as a continuous cruiser.

Mr C’s central claim was that there were mooring rights which had not been extinguished by the Transport Act 1968 (the 1968 Act), but said that the Trust had refused to list what rights did exist, instead putting the onus on him to prove what rights existed. He maintained that there was an enabling act, by which mooring rights existed, although he was unable to provide any evidence that, even if such an act existed, any mooring would not have been extinguished by the 1968 Act.

Mr C’s evidence that he had a mooring right included a clause in the British Waterways Bill (which became the British Waterways Act 1995), about the extinguishment of certain rights, but this clause was not included in the Act. On that basis, he argued that such rights still existed.

I sought clarification from the Trust on whether any rights might have survived the 1968 Act. In response, the Trust said that section 105(5) of the 1968 Act brought to an end any right of navigation previously conferred by an enabling act over the its waterways. It explained that section 115(1)(a) extended the definition of “right of navigation” for these purposes to “any right to use or keep any vessel or craft on the Trust’s waterways”.

The Trust stated that, therefore, any right conferred by an enabling act for Mr C to moor his boat was extinguished by the 1968 Act. It noted that the clause in the British Waterways Bill appeared to have related to a range of other rights (unrelated to the right to moor) that may have been conferred by enabling acts, and not the right to moor.

I could not require the Trust to recognise the location as a home mooring without evidence that a mooring right existed, and I did not uphold this element of the complaint.

Mr C also raised the issue of whether the Trust could charge him for mooring at his land, on the basis of it being an End of Garden (EOG) mooring. He disputed the Trust’s right to charge for having an EOG mooring, on the basis that he owned the land and that all the Trust was offering him was an anchorage. For this reason he said he did not want an EOG mooring. On the matter of whether he was seeking only an anchorage and not a mooring, I had no reason to conclude that a mooring was other than comprising two parts; the water and the land, and I found no evidence of maladministration. I noted also that there was no residential property on the land, and that under the Trust’s current policy an End of Garden (EOG) mooring would not be permitted.

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Case No 1003 – eviction of a moorer from a marina

Mr B moored his boat at a BWML marina. He said that following a campaign of intimidation and victimisation against him by the marina manager, he lodged a formal complaint, but that this led to him being evicted from the marina for breaching mooring rules. While he accepted that he had breached some rules, he argued that another moorer was at least as culpable as he was but had not been evicted.

Although Mr B provided video evidence, I could not agree with his interpretation of the events recorded. I did not consider that he had been treated differently from the other moorer for no objective reasons. I accepted BWML’s argument that he had breached some of the rules, and I concluded that BWML had acted reasonably in evicting him.

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Case No 1001 – complaint about the issue of a 14 day reminder to a continuous cruiser

Ms A, a liveaboard boater, had been sent a 14 day reminder letter stating that her boat had been in the same general area for more than 14 days. She argued that the Trust’s guidance indicated that if she had received three valid reminders in three months she would be subject to enforcement proceedings and would be in danger of losing her home. She wanted the reminder letter to be withdrawn.

The Trust’s position was that as the letter itself was not part of its enforcement process it would not withdraw it.

I can deal with the consequences of events which have happened, but not ones which might happen, but haven’t. Ms A had received only one notice, and even if three notices were issued in three months it would not automatically lead to enforcement action. I could not assume that the receipt of one such notice put her at any greater risk of being made homeless. I said that even if I were to conclude that there had been any maladministration I could not, on the basis of what might have happened but had not, conclude that she had suffered any injustice, and I did not uphold the complaint.

In response to the draft report the Trust pointed out that its guidance no longer referred to three, but to “multiple” notices. I noted the point although it did not materially change my analysis or conclusions. Ms A said that at the very least the Trust should provide her with an apology confirming that her cruising pattern during the period in question was compliant with the legislation and with the Trust's guidance. However, the Trust had at no point said she was not compliant and this did not alter my conclusions.

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