This page includes summaries of completed investigations and will be updated as cases are complete
Case no 1123-Complaint about the loss of facilities at a mooring
The complaint was raised by a group of boaters who were unhappy that waste facilities and a water point were no longer available at a mooring point. They argued the Trust had made commitments in 2019 to reinstate both the water supply and the rubbish bins and then reneged on these commitments. They did not accept the explanations provided by the Trust which they said were not reasonable excuses for not reinstating the facility. The group argued the lack of a water supply at the mooring has meant that some boaters have had to travel an extra four hours to an alternative water point and back. They were concerned about boaters having to turn round many times may be penalised by the Trust. They also complained about a lack of communication regarding Trust's decisions regarding these facilities. The group wanted the facilities reinstating.
The Trust says that taking all the circumstances into account it was unable to comply with the previous agreement. The group are also generally unhappy with the level of provision of facilities on the canal, arguing that the high number of users should be taken into account when deciding on the level of provision on the canal and the loss of facilities across the whole region. They feel the Trust should be reacting to the demand and not relying on general policy.
The Trust is not obliged to provide water or sanitation facilities, the decision to do so is discretionary. The Trust says it is committed to operating and maintaining a significant number of boaters facilities across its network for the benefit of its boating customers and is intending to undertake a strategic review on the effective and efficient provision of services to improve the overall offering to its customers. On this basis, the Ombudsman was unable to require the Trust to re-provide the bins and water supply at the mooring as requested.
The Ombudsman concluded that since both sides were led to believe that re-instatement was likely the issue was prolonged, which added to frustration for all. She considered the concern that boaters will be penalised by Trust enforcers because of the need to complete many turnarounds and seemingly returning to the same location many times to collect water or deposit rubbish. The Trust says it unable to provide a blanket assurance that boaters will not be penalised for travelling to and from these facilities. It says it generally reviews and considers 12 months of cruising behaviour, including overall range, turns and overstays, before any decision is made about whether the boater has met their licence obligations. The Trust says that solely moving to-and-fro between a couple-or-few facilities points over a licence period would likely not meet those obligations. Including visits to facilities in a planned, genuine journey that expands beyond a small part of the network, likely, could.
The Trust says that each case is unique, but they believe that the information already published provides the desired clarity to allow boaters to create a satisfactory cruising pattern. In addition it says as the published guidance also says, if an individual boater has any concerns or difficulties then they would always urge them to get in touch with their local Licence Support Officer at the earliest opportunity and they can provide additional, personal guidance. The Ombudsman recommended that the local Licence Support Officer should take account of any issues faced by boaters without a home mooring as a result of travelling to and from facilities before considering any enforcement action in regard to the continuous cruising rules.
In regards to better communication the Ombudsman concluded that the Trust should ensure that its website is kept updated to reflect whether the water supply has been reinstated at the mooring. The Ombudsman also found that the reference to Basic mooring on the website was misleading as it said, Customers at these sites are required to cruise to the nearest sanitary facilities, which can be up to 30 minutes away. This has now been removed since the distance is greater than this.
The complaint was prompted by the closure of the lock, in which Mr M was moored. He says he has been unable to use his boat in any way as there are no facilities for sanitation, refuelling and water. Mr M believes the issue was foreseeable and could have been avoided by early intervention when the problem first occurred some years earlier.
Mr M does not accept that the Trust has acted in accordance with its obligations to maintain the waterways. He says it has failed in its duty of care and has not followed rigorous procedures which could have prevented the problem occurring. He argues the problem was foreseeable and the time the lock was out of action does not fall in the bounds of ‘time to time’. On that basis he believes the Trust has not kept its side of the licence agreement and so the fair and reasonable resolution would be allow his licence to start from the date the lock opens and he has use of the waterways.
The Trust has refused as the Licence issued to boaters is Trust permission (granted by a permit with a fee and associated terms and conditions) for them to put and keep their boat on Trust water, the fee is not calculated on the basis of availability of the network to cruise. The network is 200 years old and subject to repair work, both planned and unplanned, that would potentially impact the enjoyment of any number of boating customers at any time. These network closures are referenced specifically in the boat licence terms and conditions.
In considering the complaint the ombudsman looked to see if the issue was foreseeable and if the time taken to complete the work was reasonable. Based on the information provided it did appear that the problem with the towpath was foreseeable. The issue had been reported some years ago and the Trust had completed a short-term repair in 2018, knowing a more permanent fix was required. The time taken to repair the issue was nine months, a portion of this was due to the Government lockdown because of the Coronavirus pandemic. However, there was a period of 25 weeks prior to this when the work could have been completed. Both parties accept the issue should have been resolved in 5-6 weeks.
There were various delays, the Trust citing poor service from its contractor. establishing where the liability lay for undertaking the repairs, accessing the site due to the presence of a gas main, plus the need to prop the roof of the dry dock once they had ascertained the size and extent of the void, all finally rounded off by the Covid delays. The Trust accepts it did take a lot longer than expected to complete this project despite the huge amount of effort to manage the Trust's internal processes, its contractor and the dry dock lessee.
In addressing whether there has been any maladministration by the Trust in its handling of this repair the ombudsman considered if, had the project been better handled, the work could have been completed before the lockdown commenced. It seemed to her, it is more likely than not, that the work could have been completed before lockdown, had the contractors been better managed, which the Trust must accept some responsibility for. On that basis, she agreed that Mr M was inconvenienced by the delays in completing the repairs and that the lockdown was not the cause of most of that time.
Considering how the complaint was handled the Trust recognised there were delays in dealing with it and the overall time to resolve the issue was protracted and offered a goodwill gesture to recognise this. Mr M refused as it was not the resolution he had requested.
The ombudsman concluded that the problem which resulted in the closure of the lock was foreseeable by the Trust, the project to complete the repair was beset with problems and the complaints process was not strictly adhered to. On that basis she upheld Mr M’s complaint.
The ombudsman did not agree to the requested resolution, either for Mr M’s licence to begin when he was able to use his boat or for a refund of his licence to cover the months he has not been able to use his boat. This was because this is a breach of contract claim, which would be for the legal process not the complaints process. If Mr M wished to pursue this, he should seek legal advice on his next steps.
Regarding the complaints process the ombudsman did consider Mr M had been adversely affected by maladministration on the part of the Trust and recommended an award to acknowledge that. This was set at a level to appropriately compensate Mr M for distress and inconvenience suffered, by reason of the acts or omissions of the Trust. Both sides accepted the decision.
This complaint stems from an issue with the canal which runs along the bottom of Mr and Mrs L’s garden. The complaint issues were exacerbated by their timing. The problem was first reported to the Trust at the start of a National Lockdown because of the Coronavirus pandemic. Mr L has COPD, which meant he was shielding, and unable to leave his house, making the garden his only available outdoor space. It was also the start of an unusually prolonged period of hot and sunny weather. These circumstances undoubtedly had an influence on the actions and behaviours of both parties to the complaint.
Mrs L was very distressed by the issue, she felt the Trust did not treat the problem with sufficient seriousness, in terms of the effect on themselves and the canal. She feels they were not taken seriously, and their concerns were dismissed. She would like the Trust to apologise for this and acknowledge the effect this had on them.
All parties agree there was a problem with the canal, although the extent and the severity of the problem is disputed. The complainant felt the issue was caused by debris, particularly large tree branches, which was causing a damming effect. They report this caused a build-up of algae and a thick green slime which caused a putrid smell. They were concerned the water would rise and cover their garden with debris and that the smell was damaging to their health. The Trust describe the canal as having a build-up of vegetation, they say a smell could not be detected, that it would clear itself and that it was not a danger to health or to the garden. They considered that clearing the vegetation was non-essential maintenance and planned to clear it in the autumn, circumstances permitting.
The problem was solved when a gentleman entered the water and using a heavy duty garden rake cleared the canal. Because of the safety and environmental issues, although understandable this action is not condoned. The apparent ease with which the problem was solved would undoubtedly only add to the frustrations felt by the complainant’s, who considered it the responsibility of the Trust to carry out this action.
The complaint is about how the issue was handled. The Trust has an internal complaints process, the aim of which is to resolve issues as soon as they are reported. If that cannot be done, then a formal response is given and if the complainant remains unhappy a senior manager investigates and responds. The first and second level responses were completed on time and contain all the necessary explanations and next steps, they also apologise that the customer has had cause to complain and say they empathise with them about any distress caused. However, in my opinion, they could have been avoided. Mrs L said on a number of occasions that she did not want to escalate the complaint, she wanted action to be taken. Had the local operational team taken the opportunity, when visiting the site, to call the complainant and provide an explanation and reassurance about the canal it is likely the numerous contacts to the Trust and other bodies may have been avoided.
The couple were distressed by the situation, they felt the Trust was not listening to them or taking their concerns seriously. They say that calls and emails were not responded to and this forced them to contact other agencies to get a response. Time invested by the Trust at the beginning of the issue would have avoided further distress and reduced time later spent by Trust staff dealing with the numerous calls and emails. While the Trust’s advice may not have changed and they would not have been able to clear the canal, a better explanation of this and reassurance as to the safety of the couple’s property and health would have showed real empathy to an elderly vulnerable couple in a distressed state.
The Ombudsman recommended that The Trust should formally apologise to the couple for the way they handled their complaint. This should include an acknowledgment that the way the Trust dealt with the situation exacerbated the issue and caused further distress.
Mrs M contacted the Trust to say that she had found out that her neighbour was a convicted sex offender and was concerned that he was moored in an area with lots of children visiting. The Trust explained its position and offered to move Mrs M and her husband to another location. The following day the offender contacted the Trust to say he had been threatened by other boaters and had left the mooring.
Mrs M subsequently made a written complaint to the Trust. She explained the impact of discovering she had been living next door to a convicted paedophile had had on her. She found the situation extremely distressing and asked for a refund of her winter mooring fees, as she felt she should not have to pay to live next door to an offender.
The Trust responded and apologised for the delay in doing so. The Trust’s view of the issue was explained and they said that had the Trust been made aware of her concerns with the offender’s behaviour towards her earlier they could have assisted. The Trust was not prepared to refund her fees as they had not been in a position to do anything other than offer her a move of location. That offer remained open to her although the offender had since moved.
Mrs M was unhappy with this response, asked the complaint to be escalated and for a refund of six weeks mooring fees, which equated to the time she was moored next to the offender.
A senior manager at the Trust responded, setting out the Trust’s position and saying that a refund would not be made as the Trust had acted appropriately in the circumstances and could not have lawfully informed her about the offender’s criminal record. Section 17 of the British Waterways Act 1995 (the “BW Act”) sets out the circumstances in which the Trust may refuse to grant a licence. These are, where the applicant does not have a Boat Safety Certificate or valid insurance in place, and the boat either has a mooring or will genuinely navigate the network on a continuous basis. The Trust is legally obliged to grant licence applications unless one of the prescribed exceptions under section 17 of the BW Act applies. The boat licence is for the boat and apart from the individual’s contact details all information requested on the licence form are in relation to the boat, its insurance, its boat safety certificate and where it will be moored. This is because the information is relevant to the boat and not to character of the individual. The Trust has no need and no rights to ask questions about the individual applicant.
The Trust has no lawful basis on which to require all boating customers to provide it with criminal record data or undergo a Disclosure and Barring Service Check. If the Trust is informed about an individual’s criminal record by the police, or other relevant agency, it is not permitted to share this information with members of the public (including other boating customers). Doing so would breach data protection laws. It could also disrupt official processes and pose significant risks to the safety of individuals. It is the role of the police or probation service to assess if an individual poses a risk to others around them, it is for those authorities to pass on information to the relevant individuals.
There are no rules or regulations in place which mean that the Trust are automatically made aware by the police, the probation services, or an individual boater about an entry on the sex offenders register. If they do become aware, they have legal restrictions in place to prohibit them sharing the information with its customers or the public. The police have a statutory responsibility to manage registered sex offenders. All registered sex offenders are subject to Multi Agency Public Protection Arrangements (MAPPA) procedures which aim to reduce the risk posed by offenders to the community. MAPPA is the process through which the police, probation and prison services work together with other agencies to manage the risks posed by sex offenders, and violent offenders living in the community in order to protect the public.
The Trust has explained that it fully cooperates with the police and local authority requests for assistance to keep track of certain boats, and to provide any information requested for investigations or safeguarding actions. In this case, when they became aware of the relevant issue, they made contact with the police to ensure they are aware of the boat’s location, so that they were able to take any steps deemed appropriate to safeguard the community around them.
The ombudsman was satisfied that the Trust had acted correctly in this case, it is not equipped to monitor compliance and it must leave that role to the relevant authorities. It was correct to advise Mrs M of this. The Trust could not have done what Mrs M wanted, because of its legal confines, and the ombudsman does not criticise it for that. It explained its actions and as the offender had already moved away from the area, and indeed the canal network, the delayed responses, while frustrating to Mrs M were not the cause of any further detriment.
Mrs M has outlined how distressing she found the experience of discovering that she was moored and living alongside a convicted sex offender. It is clear that what Mrs M wants to achieve is a change in the law. The Trust and the ombudsman are bound by the current legislation and must act within the boundaries set. On that basis, the ombudsman was satisfied that the Trust acted correctly in its dealings with the offender and it cooperated with MAPPA to ensure the correct authorities were aware of his location.
In considering how the Trust dealt with Mrs M when the complaint was raised the investigation noted Mrs M did not make a complaint about the offender’s behaviour until the day before he left the dock, which was too late for the Trust to take any action. In handling the complaint, the Trust was slow to respond to her letters which is disappointing, especially as Mrs M was clearly in a heightened emotional state. However, the Trust has apologised for this and explained the delay in the second response was due to the reduced staffing due to the coronavirus pandemic. The ombudsman was satisfied the Trust had fully explained its position and that it is not within its gift to do the things she requests.
In regard to the request for payment towards the cost of the medical fees Mrs M incurred the ombudsman concluded that the Trust should not make any contribution. The Trust has acted in accordance with the law. It cannot deny a boat licence to anyone because of their past history and it has no rights to tell others about an individual’s history.
Mr K complains that due to the narrowing of a Lock he is unable to navigate his Houseboat to a boatyard for its 10-year survey. Consequently, his barge cannot be surveyed and therefore he cannot get full insurance and peace of mind that the barge is structurally sound. Mr K attempted the trip in 2016 and since then has been trying to get a resolution or workable solution from the Trust.
Mr K says the barge had been a working vessel and had travelled the route for over 80 years. He wants the Trust to take some action to enable safe passage through the lock. Although the Trust has offered to help, he does not consider the options given offer real solutions and says he feels he has not been treated fairly. He pays a yearly fee to use the waterways and to moor his boat and he does not feel he is getting value for money.
As a resolution Mr K would like the Trust to complete work on the Lock to restore it to its original width to enable his barge to pass through. He estimates this to be about an inch and a half. He also wants to be compensated for the time taken to resolve the issue as he feels the Trust has allowed him to spend four years waiting for action when none was taken.
The Trust accepts there has been a narrowing of the lock width but considers the lock to be stable, the bowing of the lock is not listed as an active defect and so it is not scheduled for repair of any sort. The Trust believe they have proposed different viable solutions to Mr K which would assist him to transport the barge and complete the survey. He has rejected all of them and the Trust says the only solutions that seem to be acceptable to Mr K are those where the Trust carries the sole financial cost and responsibility (i.e. widening of the Lock to enable his passage).
The Trust does not accept that it has a statutory duty to enable the barge to travel through the network. The Trust quote section 105 of the Transport Act 1968 (appendix 1) and The Fraenkel Report 1975, to substantiate this. The relevant point is that that the Trust has a duty to maintain the cruising waterways in a suitable condition for the type of cruising craft that used the waterways in the nine months prior to December 1967. The Transport Act sets out the obligations on the Trust and defines the particular canal as a cruising waterway. Mr K’s barge is wider than the required size and so the ombudsman accepted there was no statutory duty to widen the lock.
The investigation found that the Trust was aware of the narrowing of the Lock prior to the aborted journey and had noted its website of the restricted size. Had the website been checked before the journey the trip could have been avoided. On that basis the ombudsman did not consider it was fair and reasonable to compensate Mr K for the cost of the aborted trip or any other costs claimed.
In regard to the way the complaint was handled, the ombudsman found the advice from the Trust had initially been that it would investigate and measure the lock. Once it had done this it advised Mr K it would not be completing any work on the lock and it accepted no responsibility for the costs involved in him transporting his barge.
The Ombudsman did not uphold Mr K’s complaint. The Trust is under no statutory obligation to provide passage of his barge through the particular lock. The dimensions of the barge are over the statutory capacity of the lock. The ombudsman accepted the Trust’s view that the cost of completing the work required to facilitate the passage was prohibitive, since this was the only vessel which had reported a problem and the Trust had to take an economic view of where best to spend its money for all users. The ombudsman concluded that the Trust had acted in a way that is fair and reasonable to all its users.