2018-19 case summaries

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

Case No 1038 – complaint about the Trust allowing widebeam boats to use a narrow canal

Mr H is a boater with many years’ experience, and uses the North Oxford Canal. He complained that the Trust permitted widebeam boats to use the seven mile section of the North Oxford Canal between Braunston Junction and Hillmorton, despite it being designated as a narrow canal, which raised issues about safety and navigation. He also complained that the Trust had not objected to the provision of widebeam boat facilities at a new marina near the middle of the seven mile section.

The canal was not designed as wide canal and, while it is physically capable of accommodating widebeam boats as far as Hillmorton Locks, the locks are too narrow to allow them to go further north. The Trust accepted that it was not suitable for widebeam boats, but it did not prevent them from using the southern section, noting that although there had been some incidents they were not of such a level and frequency to warrant closing the canal to widebeam boats, or at least enforcing its designation as a narrow canal.

The Trust did accept that boats wider than the seven feet designation could become grounded or stuck, and also that if two boats, at least one of which was a widebeam boat, met bow to bow, there was one section where in the worst case scenario a boat might have to reverse about 2.25 km. The Trust said it had carried out a risk assessment, and that while it had concluded that there may be some potential temporary obstructions, no permanent obstructions had been identified.

However, the Trust did say that its assessment acknowledged that navigation by widebeam craft required good boat handling skills as well as due care and consideration to other users. It added that the assessment recommended that the Trust keep under review the extent of use of widebeam vessels on this part of the network, in line with the national approach, and consider further ways of bringing the increased challenges of navigation to the attention of widebeam vessel owners. It said that further work was being undertaken with its Navigation Advisory Group  (NAG), and that after discussions with NAG they had supported the Trust’s approach.

Mr H considered that the Trust had made light of the hazards. He felt that despite the Trust’s point that it would keep the situation under review, the situation could get out of hand before it could react.

Although the Trust was clearly aware that the canal was not suitable for widebeam boats, I had to accept that its decision not to bar them from access was a matter of policy. My Rules state that my role is to consider injustice suffered as a result of unfair treatment or maladministration. What constitutes maladministration may be open to argument. If, for example, a policy clearly led to detriment, then I may be able to require the Trust to take action. In this case, even if I had found evidence of maladministration there was no clear evidence of detriment. That is not to say that there will not be so in future, but the Trust has stated that it will keep the situation under review, and I cannot assume that there will be problems nor, if so, that the Trust will not take appropriate action.

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Case No 1041 – complaint about the Trust’s refusal to provide compensation following a data breach

Mr G complained that following a data breach by the Trust, it had refused to agree to his request for compensation. The breach had occurred in the Trust’s licence renewal system, whereby contact details of other licensees were included in details sent to other licence-holders. The system was operated by an external contractor, on behalf of the Trust. The Trust accepted that there had been a breach, and reported it to the information Commissioner’s Office (ICO), in line with the requirements of the General Data Protection Regulation (GDPR). It stressed that no bank details or associated financial information had been included in the breach.

Mr G said that worry about the breach, and not knowing how or when any of his personal information may be used for fraudulent purposes, had caused him to lose sleep, and had affected him mentally and physically. As a resolution of his complaint he wanted the Trust to waive a year’s boat licence fee.

I explained that it was not my role, but that of the ICO, to decide whether there had been an infringement. Although the Trust had reported the breach, the ICO had not, at the time I became involved, made a decision on the matter, nor whether any action would be taken. I said that I could not pre-empt any decision by the ICO.

Article 82(6) of the GDPR, and also section 168 of the Data Protection Act 2018 (DPA 2018), provide for compensation by way of the courts.

The Trust’s view was that the risk to individuals was very low, and I had no reason to disagree with this assessment. I said that if it were clear that there had been an infringement, and further that Mr G was able to show that as a direct result he had suffered damage (including distress), it might be open for me to decide that the Trust should compensate him. However, in the absence of evidence of actual loss, and also given that no financial information was disclosed, I did not consider that it would be appropriate for me to recommend that the Trust do so.

Mr G is not prevented from asking a court to consider his claim. However, I noted that even if he had suffered loss, any compensation would be unlikely to equate to exactly one year’s licence fee, which was a considerable sum, amounting to several hundred pounds. I said that if he were to ask a court to consider compensation, he would have to provide a detailed justification for his claim.

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Case No 1029 – complaint about arrangements for a private event at a Trust location

Mr and Mrs F hired a room at a Trust location for a family event, for which they had paid a fee of £1,400. As well as the room, the price included various services such as the provision of boats on the adjacent canal to take people to the event from a nearby location, as well as staff to assist at the event. It also included access to the room the day before and the day after the event.

They signed a Hire Agreement, which sets out the standard terms and conditions. They also agreed a Schedule, which described what would be done at what time, such as seating and table arrangements, what the arrangement for music were, and the timing of taxi boats etc.

Mr and Mrs F said that a number of things had not gone as planned. Among the points in their complaint were that several of their guests had missed the boats to take them and their guests to the venue, as the departure times were different to what they had agreed. They said they had been rushed out of the venue at the end of the evening as they had to prepare for another event the day after, and that because they were rushed out they were not given the opportunity to collect any food and take it with them.

Following its investigation the Trust accepted that there had been problems, but did not accept all of the criticisms. It did apologise, and offered a goodwill reduction on the fee of £100, but Mr and Mrs F did not accept it. In bringing their complaint to me they said they were seeking a 50% reduction in the fee.

Having read the evidence of both parties, I met Mr and Mrs F at the location. We discussed the complaint, and went through some of the specific points. It seemed that part of the problem may have been that shortly before the event the key person they had been in contact with had left. Whether this led directly to the problems may have been difficult to ascertain, but I accepted that things had gone wrong, and that the £100 goodwill offer did not fully reflect the experience of Mr and Mrs F.

My view was that the complaint should probably never have come to me in the first place, and that it should have been resolved without the need for my intervention. It did not seem to me that carrying out a detailed investigation, and writing a formal report, would be the most effective way of resolving the matter. It would certainly have taken much more of my time and that of the Trust and the complainants, so I proposed a mediated settlement. Although it was more than the original £100 goodwill offer, and less than the 50% rebate Mr and Mrs F had sought, both parties agreed to it.

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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 1009 – complaint by a resident that the Trust had refused to accept responsibility for the maintenance of the river wall, and had also illegally removed his boats from the riverbank adjacent to his property

Mr E lives in a property on the bank of a river which has been canalised by the installation of locks. He had spent a significant sum of money renovating his section of river wall, and had also moored two boats by his property.

He argued that an Act of Parliament some three centuries old had stated that if the navigation authority at any time raised the water level, and that the adjacent land may be more liable to be overflowed or damaged than previously, then it would proportionately raise and heighten the banks, as well as repair them. He also argued that the same Act granted owners and occupiers of adjacent lands the right to use boats without charge.

Mr E asserted that the river level had been raised, and while I accepted that this might have been the case, the only evidence I could find was in relation to works carried out in the later 19th century to allow it to accommodate larger boats. The Trust said that any historic increase would have coincided with a requisite increase in the height of the river banks at the time.

Mr E had carried out his repair works nearly 20 years ago, but said that he had only recently become aware that the water level had been raised.

I did not consider whether, if there had been an increase in water level, the banks had been raised. The Trust had argued that in any case any claim would by now be statute-barred under the Limitation Act 1980. It added that there are some exceptions to this, such as in the case of latent damage that becomes apparent only some time later. However, the Trust said it was difficult to see how any exceptions could apply here, particularly given the very long period of time since the works were carried out. It suggested that if Mr E did wish to pursue this further, he should obtain his own legal advice in what was a complex area.

I said that if Mr E did still believe that the Trust should pay him compensation for any damage caused by it or any of its predecessors having raised the water level, I could only suggest that he seek independent legal advice. I explained that if he did have any basis for a claim it was likely to hinge on detailed interpretations of the law, which were beyond my level of expertise. I added that on the purely practical issue of demonstrating that works carried out so long ago led to him needing to carry out remedial work over a century later, he would need to establish cause and effect.

On the issue of his boats, British Waterways wrote to Mr E some 12 years ago explaining that he did not need a licence while his boat was stationary. However, in 2016 the Trust wrote to him stating that this was incorrect, and that he did indeed need to license his boats, and urged him to do so. He did not do so, and after notifying him that it would take enforcement action it removed his boats.

The Transport Act 1968 removed any local mooring rights, but Mr E’s view was that unless compensation had been paid for any such loss, as provided for within the Act, he retained mooring rights. He also said that the original Act had granted the rights “in perpetuity”, but I said that what one Act of Parliament could give, another could take away. My view was that the retention of free mooring rights would not have been made contingent upon the payment of compensation. I added that as he had purchased the property after 1968, any historic mooring right would not have been reflected in the price, and that if there had been any loss it was not he who had suffered it. I also noted that 50 years on, it seemed to me that any possible claim would have fallen by virtue of the Limitation Act 1980.

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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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