2019-20 case summaries

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

Case No 1082– complaint about alleged failure to act in accordance with the Trust’s Equality process and complaints procedure.

Mr H says his complaint was not properly answered at first and second level and he has not been treated fairly. His complaint concerned the actions of another boater who he says harassed him and caused him distress and the Trust did not assist him in dealing with this. He complains that the Trust does not have an Unreasonable Behaviour Policy for boaters which means it is not following its duty of care to protect disabled boaters.    

My investigation concentrated on the way the complaint was handled and whether the Trust could have used 7.6 of its terms and conditions which say, in essence, that boaters must not behave in a manner that would cause nuisance to another or damage to property.

I upheld Mr H’s complaint that his initial complaint was not responded to in line with the complaints policy and he had to raise the issue again in order to get a response. In addition, not all aspects of the complaint were responded to at the second level stage and this caused further delay.

I did not agree that the Unacceptable Behaviour Policy should include protection for boaters. The policy is designed for use by the Trust staff when presented with challenging customers. However, I did agree that the use of 7.6 of the Trust’s terms and conditions may have helped to manage the situation had it been used and had Mr H presented enough evidence of the problem he was facing. I did not find any evidence that the Trust had failed to act in accordance with its equality policy. 

 

Case No 1084 – complaint about the refusal to renew a mooring agreement because of a breach of the site rules.

Mr F complained that the response of the Trust to its discovery that he was renting out his boat on a long term let was disproportionate. The Trust refused to renew his mooring agreement saying he had broken the agreement by renting out his boat without permission of the Trust and against the rules of the site. Mr F believes the decision was motivated by the enmity of the Trust staff towards him because of his whistle blowing on individual and corporate misconduct. He says he has not been provided with the opportunity to either, sign up to a new policy regularising long term lets or to stop renting out his boat within a given 28 day period, to prevent enforcement action. He says this is neither reasonable nor compliant with Trust policy.   

The Trust says it was presented with irrefutable evidence that Mr F’s boat was being advertised for short term lets which is not permitted at his mooring. He was challenged and agreed the advert would be taken down. He was advised to contact the Trust for more information if he wished to rent out his boat. Some months later the Trust was made aware the boat was being rented out on a long term let, without the permission or knowledge of the Trust. As the Trust had already advised him against renting out his boat it said when his mooring agreement ended it would not be renewed.

Mr F challenged this as being disproportionate to his actions. He said it was custom and practice for boats to be rented out and the Trust was known to turn a blind eye. He argued he had been discriminated against as he had made a number of high level, high profile complaints to the Trust in the past. He compared this to being discriminated against because of whistle blowing.

The investigation focussed on the relevant terms and conditions, if he was given an opportunity to comply, whether whistle blowing legislation was relevant and how the complaint had been handled.

The mooring agreement and the site specific rules of the mooring say the moorings are for the private use of the boat and any breach can result in the loss of the mooring. Mr F was aware that he did not have permission to let out his boat but said he made a reasonable assumption, based on past actions by the Trust, that no enforcement action would be taken. When action was taken, he argued he had not been given an opportunity to comply with the rules and ask the tenants to leave or make the arrangement official. The Trust argued he had been warned some months earlier and so it took immediate action when presented with evidence of the long let. After some initial confusion it was clarified during the investigation process that no business licence to rent out boats would be allowed at his particular moorings.

In considering if Mr F had been discriminated against I concluded that the Trust had acted in accordance with its rules and policies when presented with evidence that the rules had been broken. The Trust has a duty of care to everyone using the waterways and must know who is occupying boats in case of any incidents or accidents. I found no evidence to suggest that Mr F had been treated in a disproportionate way because of his past actions. I concluded Mr F had been the victim of disgruntled tenants who presented the Trust with evidence of the let rather than a victim of discrimination because of his past actions.

I did find some problems with the way the complaint was handled and suggested changes to process to ensure complaints are dealt with in accordance with the policy, however they arrive at the Trust.

 

Case No 1070 – complaint about the way the Trust handled a claim of negligence including an allegation of maladministration in relation to information provided to its Loss Adjustors.

Mr G complains that his boat was damaged when it collided with a swing bridge which was not fully retracted and made a claim for compensation for loss of its use, while repairs were completed. The claim was refused on the basis the collision was caused by poor helmsmanship. Mr G became aware, via a SAR, that misinformation in the form of an alleged diary note may have been provided to the insurer and questioned the Trust about this. The Trust did not answer his questions and said that the matter needed to go to court if the customer was unhappy with the response. Mr G wished the Ombudsman to investigate the allegation of negligence, that there was insufficient warning that the bridge did not sit flush with the copping stones, and the veracity of information provided by the Trust to its insurer.

As Mr G had submitted a negligence claim and indicated he would pursue the issue via the courts I did not consider the question of negligence. I investigated the likelihood that there was maladministration as a result of misinformation being passed to the Loss Adjustor and if the Trust had followed its complaints process correctly.

I concluded there had been delays in the handling of the complaint for which the Trust should apologise and pay a small goodwill gesture. In regard to maladministration, I concluded there was no evidence of this as the disputed note was only a part of the decision making process. However, the way the Trust had dealt with the note was poor and had exacerbated the time spent dealing with the complaint.

 

Case No 1051 – complaint about the payment of mooring fees for an unused mooring because of insufficient depth at the mooring

Mr E complained that he had paid for a mooring for two years that he was unable to use as the mooring needed to be dredged to allow his boat safe access. He said that the staff at the Lock were aware of the issue and had agreed that dredging would be done and advised him not to return until it was complete. The mooring was not dredged. The customer refused to pay for a third year and asked that the Trust forgo payment for the next two years in lieu of payment already made and then dredge the mooring. The Trust denied there was an agreement in place and maintained the mooring was of sufficient depth to allow the boat to moor, according to the dimensions provided by the customer on his boat licencing certificate.

I did not uphold the complaint as the evidence provided indicated that had he tried to moor at the Lock he would have been able to. There were long periods of time when there was no communication between the parties. It appeared to me that Mr E had continued to pay for the mooring in order to ensure it would be available to him should he decide to return. The Trust had refused to allow one of the Mr E’s boats to return because of foreseeable problems but that was not the boat associated with the mooring agreement. I was satisfied that the mooring was available for use throughout the period and so it was reasonable for the Trust to expect payment for it.

Case No 1031 – complaint about the removal and eventual destruction of a residential boat

Mr D had been required by a Court Order to remove his boat from Trust waters, but he said that the Trust had given an undertaking that it would allow him to remain as long as he found a home mooring.

His main argument to me was that the Trust had provided incorrect information to the court about the availability of home moorings in the area, and that although he had booked a mooring it was not yet available when the Trust came to seize his boat. He regarded this as a breach of the undertaking, but my view was that as the undertaking had been made in court it must be for a court to decide whether it had been breached.

Mr D’s boat was a historic wooden narrowboat. In court he had stated that if the Trust, in seizing it, removed it from the water it would dry out, and one may as well burn it. The Trust did take it out of the water and transported it over 100 miles by road to a dockyard where it was put back into the water, but it sank, and despite attempts to refloat it, sank again. The Trust put the boat on brokerage but said there was no interest, and that it was eventually broken up and destroyed.

The Trust had said that it had taken the boat far away because of the risk that the complainant would try to damage or reclaim it, but based on my meetings with the complainant and discussions with Trust staff my view was that this was an unfounded concern.

 

Case No 1061 – complaint about the way the Trust manages water resources at lakes constructed to feed the canal network

Organisation C represents stakeholders with an interest in the lakes as a local amenity and as a wildlife haven. The lakes were constructed as a feeder system for a canal, and that remains their primary purpose, but they are also a prominent local feature and a key part of the local ecology. They are fed by brooks, one of them having a sluice, which when closed diverts the water to one of the lakes, and when open allows the water to bypass the lakes, although this does mean that if the level in the lake is above the cill of the sluice, water can flow back out of it and into the bypass channel. The sluice also has an orifice in it, which when the sluice is closed allows some water to keep flowing into the bypass channel. There is a Memorandum of Understanding (MoU) between the Trust and the Environment Agency (EA) which aims to prevent water overtopping the dam wall of the lakes and flowing into an SSSI.

The complaint was that over a period of many years the Trust had not properly managed the water resource, in particular that it left the sluice open for long periods during the summer months, resulting in the direct loss of water from the lake into the bypass channel, as well as the consequential result that any further water coming down the brook was not available to top up the lake. Organisation C also said that the orifice in the sluice wasted water.

In its formal responses to the complaint, the Trust focussed on recent weather events, and the need to comply with the MoU, which was especially important during the summer months when an algal bloom develops and it was necessary to prevent this from flowing over the dam wall. However, the organisation argued that the Trust had not dealt with its criticism that the alleged mismanagement had been going on since 2002.

I said that although it was not stated, the implication of the MoU was that the sluice would be closed when the lakes were not likely to overspill. The organisation disagreed with the Trust’s statements about its management of the sluice. It said that the Trust did not open them when the lakes were full, but that they were left open from April to October regardless of water levels.

As it happened, during the time I was involved (the first half of 2019) there had been adequate rainfall (in stark contrast with the hot dry summer of 2018 when the water levels had been severely reduced), and the sluice had been left closed, meaning that water was diverted to the lakes. Whether that was because I was involved I cannot say. Nonetheless, I found it hard to reconcile what seemed to me to be the Trust’s unequivocal statement that its operation of the sluice was designed to satisfy the twin objectives of maximising water level while minimising the risk of overspill, with Organisation C’s statement that in most years the Trust left the sluice open for long periods in the summer months.

I cannot direct the Trust in what is after all a matter of policy. I could require it to do certain things if I were to conclude that there had been maladministration. The purpose of the MoU is to agree and control the distribution of the flows to the lakes. It is not a statement about how the Trust will manage its water resources but how, for example, it will avoid overspill into the SSSI. Although the implication may be that the Trust will try to maximise water levels, the MoU does not say this, and I did not conclude that there had been maladministration.

The original purpose of the lakes was to feed the canal network. If the management of the lakes left that short of water, it would not lead to an injustice suffered by Organisation C, although it may potentially affect canal users. Nonetheless, I said that the Trust did present the lakes as an amenity, as a beauty spot and as a centre for leisure activities, and it would seem reasonable to assume that it would endeavour to maintain water levels at the maximum level commensurate with satisfying the MoU, and any operational requirements. The Trust accepted that a review of the MoU was due, and that in doing so it would welcome the views of Organisation C and give it an adequate opportunity to comment.

Although I made no recommendations I did say that this did not mean that I thought the Trust could not more effectively manage the water resources to satisfy a wider range of stakeholders, but because I had not concluded that there had been maladministration.

 

Case No 1039 – complaint about the noise from a canal pump in a domestic property

Ms B lives in a house, next to a canal lock, which incorporates an old pump house, to pump water from below the lock back to the pound above it. The original pump was steam-powered but was some time ago replaced by an electric pump. The pump sits at the bottom of a large flooded chamber, below one corner of the house, and pumps the water up through a pipe to an external housing from which it flows back into the canal. It is one of a series of pumps designed to conserve water which flows down the canal as boats travel through the locks. It is needed more in dry conditions, and during the cruising season when the locks are used more often.

Ms B said that the noise of the pump causes a nuisance, which some years ago was less of a problem. Its maximum hours of operation are 6 am to 6 pm, but during the time she has lived there it has been used more of the time, partly because of drier conditions and partly because of increased boat traffic. She had spent many hours, over a long period of time, trying to get the Trust to do something to reduce or eliminate the noise, but although the Trust had done some things there was no obvious solution nor any clear plan to address the problem. She was unhappy with what she saw as the lack of action by the Trust, long delays in getting things done, and its failure to sort out the problems in a property which it had been content to sell for residential use.

The Trust had recently engaged the services of an external acoustic consultant, and during the time I was involved it issued a draft and then a final report. Its recommendations included de-watering the chamber to enable an inspection and repair of any defects, improving the mounting of the submersible pump, installing a replacement pump, and reviewing and introducing management protocols to limit instances where noise levels were raised due to filter clogging.

I had no doubt that the noise of the pump was a severe nuisance to Ms B, and that it caused her distress for long periods, not just when it was running, but even when it was not running because of anticipation of it coming on unannounced. However, I was limited in what I could do. The only solution guaranteed to be effective would have been to relocate the pump outside the perimeter of the house, but the cost of this would undoubtedly have far exceeded my maximum award of £100,000, and I could not require such a remedy. In discussion with Ms B and Trust staff on a visit to her house, it did seem that there might be alternative remedies which, while perhaps being less effective, might reduce the nuisance level, such as to install a quieter pump with less capacity but run it for longer hours.

During my investigation the Trust was considering the situation, and decided that it would provide funding for further investigatory and remedial works. Having seen the noise report and the recommendations, my view was that there probably nothing more I could usefully do, and that I should cease my involvement and leave the Trust to get on with the work. I was confident that it would carry out the proposed actions, and that my presence was not required to ensure this. Although this did not seem to me to be an entirely satisfactory resolution of the complaint, because it would be unlikely to eliminate the noise, Ms B felt that without my involvement matters would not have progressed as far as they did, and that I had managed to achieve something she had not.

 

Case No 1046 – complaint about the Trust not taking timely action in relation to complaints about overloaded boats

Organisation A is a residents’ association, comprising members who overlook a river. Their complaint, as dealt with by the Trust, was about what they saw as its failure to deal with their request to it to take action in respect of what they said was the overloading of boats. The boats were operated by a local hire boat operator, providing services for people to scatter the ashes of deceased relatives on the river. The organisation had also raised a number of other issues with the Trust, but which had not been considered formally in the complaints process, and which it wanted me to look at.

There is a patchwork of law and regulation covering waterways and their use, and for many of those uses the Trust has no responsibility for taking enforcement action. The organisation’s view was that at least for some of them it would be better if the Trust, given its prominent role in waterways issues, were to take the lead.

The issue which the Trust had considered was whether it should have acted more quickly in response to Organisation A’s request for action in respect of the overloading of boats. This is in fact not the responsibility of the Trust, but that of the Maritime and Coastguard Agency (MCA), even for inland waterways. The Trust did eventually alert the MCA to the issue, but it took several months, by which time the organisation had contacted the MCA directly. The Trust did accept that there had been delays, for which it apologised. I agreed with the Trust’s own assessment, but did not consider it appropriate to go further or to make any recommendations.

The Trust does have a process in place for dealing with such matters, although in this case there was a delay which should not have happened. This did not reflect Organisation A’s experience, but it did not mean that a new process was needed; rather, the Trust should ensure that the existing process worked.

On the other issues, I said the most I could do would be to consider whether there was any merit in them being examined in greater detail. If I reached the conclusion that the Trust did not have jurisdiction, there was probably nothing to be gained by the submission of formal complaints.

The issues included Organisation A’s view that the hire boat operator was ignoring Environment Agency (EA) guidance about the scattering of ashes, for example that it should not go ahead in windy conditions, near residential locations, or places used for fishing and bathing. The organisation said that this had previously been EA policy but had been downgraded to guidance. It argued that the Trust should take over the responsibility for enforcing the guidance, but I said it did not have appropriate legal powers to take enforcement action, and that if it were to do anything it could only be on a voluntary basis. If it attempted to take any enforcement action it could simply be ignored.

On the issues of the numbers of boats operated by the boat hire company, and the hours of operation, these were matters for the Local Authority to deal with, in relation to what is known as the Certificate of Lawful Use. On whether, at the mooring operated by the boat hire company, more boats were being used for residential purposes than the permission allowed, this was also a matter for the Local Authority to enforce.