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2021-2022 case summaries

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

Case summaries 2021-22 website

  Case Number 1193 -A complaint about the handling of payment plans for licences without a Direct Debit.

Mr Q and Mrs R complained about problems faced over several years which stemmed from an early payment of their licence fee being placed on the previous years’ account. The Trust responded to the points raised but the couple remained unhappy with several elements including, the action of one individual, the incorrect recording of their address, the use of county court summons, the length of time taken to resolve maters and what they alleged was a cover up and avoidance of answers.

The couple requested recompense to recognise the years of ongoing stress, worry and ongoing anxiety and their constant frustration of being refused telephone contact with the local office. The complaint started with an early payment in June 2016 and the final response was issued in August 2020.

The Trust has several ways customers can pay for boat licences, but Mr Q did not want to use them and so a special arrangement was made for him to pay £100 each month.  Unfortunately, there was a difference of opinion on the start date of the arrangement in 2016 and opportunities to identify the cause of this and put things right were missed. With the benefit of hindsight, it is easy to look back and spot the point where things went wrong, but at the time it appeared to the Trust the account was in arrears, and it followed process to recover the arrears.

There were also opportunities for Mr Q to spot the error and seek to remedy the matter. He was sent a copy of the payment plan which set out the due dates for payment which were explained again in a telephone call. Mr Q has tried to resolve things, he met with the local boat support officer to discuss the issues, but it does not appear that information was passed back to the credit control team to alert them to the issue. To compound the problem there were discrepancies with the customers address which were not properly explained and an issue when he received correspondence for another boat. There were also payment issues the following year despite a Direct Debit being set up.

The matter has been unresolved for some years and there have been some delays in the Trust meeting its deadline for responses. There also appears to have been times when there has been no activity at all. The Trust says it has taken the learnings from this complaint and looked to make improvements in its procedures to prevent any recurrences. Mr Q is seeking accountability at the Trust for actions taken, this is an internal matter for the Trust and would form part of the process improvement work it has agreed to undertake.

I have not been provided with any evidence from the couple to make an award for direct or consequential losses so I considered an award for distress and inconvenience only. I do have sympathy for the frustrations experienced by the couple, but I have nothing to support an award of the size requested. I have seen opportunities when both sides could have taken the time to understand what had happened and prevent the matter snowballing. I have seen no evidence that this was any kind of vendetta by Trust staff against the couple and while I appreciate, they describe being embarrassed while using the canal network, as they were not able to display a licence, I did not consider that merited an award of the amount requested.

Following my investigation, I concluded there were opportunities when both sides could have worked better together to understand the root cause of the problem and prevent the matter escalating. The Trust says that it has learnt lessons and a review of the way they work is to be conducted, which is welcomed.

I recommended the Trust make a medium sized award to Mr Q and to Mrs R as a goodwill gesture and that it reviews how its payment plans are processed to ensure that customers have confirmed their agreement to the plan recorded against their records. 

Case no 1171  A complaint about who is responsible for dredging a mooring at a Cruising Club.

The Cruising Club has been complaining since April 2018 about the lack of water depth on its moorings. It said that British Waterways Board (BWB) previously dredged the mooring, but they had not been dredged for over 22 years. The lease agreement did not include any details as to which party was responsible for dredging and there was nothing to compel the Trust to finance the cost of the work. I concluded as there is no recorded liability for the dredging the onus will fall to the party which requires the dredging to finance it. 

The Trust argued that the Club should have told the Trust about the need for dredging when it consulted widely on the Dredging Programme in 2018. The Club believed the Trust was aware of the issue before the 2018 consultation and should have included the area in the programme. I concluded that even if the area had been included in the consultation there is nothing to guarantee it would have dredged, resources are limited, and the Trust would have had to consider where dredging was most needed at that time. 

The Club do not believe the Trust is treating it fairly. They are negotiating a new lease with the Trust, which is a separate issue, which gives it the right to moor boats on the offside but if the silt is not cleared it will be paying for a facility which is becoming difficult to use and is a significant part of its income. The general rule for the Trust is that where there is a commercial agreement in place, they do not dredge under moorings, unless they have already agreed to do so within the contract covering them, which they have not in this case.

The Club consider that refusal to dredge the area and implying they have no responsibility is an act of deliberate neglect by the Trust which could affect the viability of the Club in the future. The Club says it has worked hard over the last 50 years to restore the site and boating facility and is being treated unfairly and with disrespect. The Trust acknowledge the contribution the Club has made to the area, and therefore it has tried to explore opportunities to assist it. The Trust has to be mindful there are many Cruising and similar Clubs within its network, and each should be treated in the same way, if the lease does not stipulate who is responsible for the dredging it does not fall that the Trust should be the party to bear the cost.

As a resolution the Club says it would like the Trust to take responsibility for dredging the area, as BWB always did, to enable the Club to operate. They say they expect the Trust to honour its part of the lease and ensure the mooring are fit for purpose. The lease puts no such requirement on the Trust and so I could not require that it fund the cost of the dredging.  

I did make some recommendations that the Trust should explore the potential cost of completing the dredging work required at the moorings by getting quotes from two certified contractors as it had already planned to do. When the information is available, they should inform the Club so it can make an informed decision of how it wishes to proceed. This should happen within two months of acceptance of the final decision and before the lease negotiations begin. 

The Trust had already suggested it should support the Club in the best way it can by waiving any costs in relation to its own work in providing technical assistance in the developing of the project and waiving its standard fees for third party work carried out on its land. I recommended this happen and that the Trust should apologise for the delays in dealing with this issue particularly during the early stages when documents were lost, and contacts were not followed up.  

Case no 1173 A complaint about flooding at allotments.

Mr S has an allotment at a location which is leased from the Trust. In February 2021, the allotments flooded, and Mr S contacted the Trust to request some action to inspect the allotments and propose actions to remedy the situation. He complains the allotments remained unusable and the Trust did nothing to assist him. As a resolution to the complaint Mr S wants the flooding problems at the allotments to be resolved so they can be fully used, an explanation of the poor customer service he has experienced and an apology for the delays in dealing with this issue. 

The Trust has explained to Mr S that, although he is a user of the allotments, he is not the leaseholder. A copy of the lease was provided which expressly states the leaseholder is “to take the land in its current state on the understanding the Trust will not be liable for its condition or any work thereto”. The Trust has explained that before entering the lease arrangement with the Trust, the leaseholder noted in writing, that the site floods and had discussed this with the Trust, noting the role of the Environment Agency in managing flood risk.  The Trust has taken the view that the leaseholder was aware of the risk of flooding to the site and that no specific obligation on the Trust to maintain the site should be expected by them, and therefore nor by any of the users of the allotments.

 The allotments are in an area prone to flooding, all parties are aware of this. The Trust has limited resources and when areas flood it must decide where best to use that resource to avoid any risk to life, to protect properties and livelihoods. I consider it inevitable that allotments would not be high on the priority list. The Trust does not consider there is a need to carry out any work at the allotment and that flooding is to be expected, because of the location. The Trust has provided the leaseholder of the allotments with a refund of the rent for the year affected as a gesture of goodwill, even though the Trust is not contractually obliged to do so. The Trust has apologised for its poor customer service, which is somewhat explained by the frequency of contact and unachievable expectations of Mr S and has apologised for this. It has reported that individual failures which were highlighted have been dealt with internally.

 I upheld Mr S’s complaint that his contacts were not handled as well as should be expected and recommend the Trust apologises for that. I did not uphold the complaint that the Trust failed to take any action to remedy the flooding at the allotments to make them useable. The flooding is a natural occurrence, because of the location in low lying flood area, the Trust is not responsible for this.

-case no 1169 -complaint about the selection of candidates to a training course to become a Boat Safety Examiner.

Mr P complains that, in its capacity as a training provider the BSS Office is anti-competitive, manipulating the marketplace of Boat Safety Examiners by only allowing people to qualify if they live in a certain area and that the cost of the Examiners training course is excessive, and the high cost is being used to discourage applicants, and the cost of ‘Professional’ as per the published accounts is disproportionate to the operation and you request clarification.

Mr P considers the inclusion of geographic location into the selection criteria of the course to be unfair for all applicants. He argues that as the BSS is totally dominant in this marketplace, it is disadvantaging applicants by applying a criteria that is unnecessary for a place on a training course. Mr P says he understood he had been accepted for a place on the course in 2015 and began to prepare for that role. In 2020 he was told that he would not be accepted on the next available course because where he lived was not a priority area for examiners.

Mr P argues, since he had previously been accepted on training courses, he should not have had to go through a selection process. The BSS has explained that from 2016 onwards the course was being redesigned. When the new format had been agreed it was fundamentally different in structure, content and cost and places were limited. Therefore, due to a high demand for limited places candidates were invited to complete a two-stage application refreshing the information they had previously provided. I was satisfied that, when a course was eventually available it was fair and reasonable to all candidates that they were all asked to re-apply. I do not accept Mr P’s argument that he had already been accepted and so should be exempt from this process.  Mr P says he has no objection to reapplying but does not consider the method employed was fair.

The Trust explained that due to the withdrawals of existing examiners, the geographic criteria was important to ensure that the customers of the various navigation authorities can have an examiner within a reasonable distance of their boats. The BSS serves 14 Navigation Authorities across England and Wales and I agreed it made sense to ensure that those authorities have sufficient examiners for their needs. As the likelihood is that an applicant from a particular area will, once qualified, wish to remain and work in that area it seems to be a pragmatic decision to consider location when assigning the places on the course. I do not criticise the BSS for including the criteria as part of its selection process for the course. It was not the definitive criteria, rather it was one of several criteria to be taken into account.

I was provided with a detailed but confidential breakdown of how the process of selection was conducted by the external contractor. It demonstrated a fair and robust process was used which weighted applicants against a competency and then looked at CVs. Candidates were graded with an A if they had the qualifications and appropriate length and type of experience. Only following the grading process was the issue of location applied. On this basis I am satisfied that the reason Mr P’s application did not make the top 50 list was not because of his location but because of his experience and skills. Therefore, the decision to include location as a criteria for course selection did not disadvantage Mr P. I do not find that the BSS has a geographical bar and I do not uphold his complaint.

Mr P’s second complaint is that the cost of the Examiners training course is excessive, and the high cost is being used to discourage applicants, and the cost of ‘Professional’ as per the published accounts is disproportionate to the operation and he requests clarification.

Mr P compared the cost of the course with other vocational courses.  In its response to me the Trust has looked at the costs of other courses which when fully tallied up for a complete qualification are similar costs. The Trust has also provided a breakdown of how the costs of this course are made up which show it is carefully costed. General information explaining what the course involves is also available on the BSS website and shows the course includes two one-week courses as well as other day long events, online learning and ongoing support. I do not find any evidence that the cost of the course is excessive or there is a deliberate policy to restrict applicants by pricing it too high.

Mr P also queried a figure in the BSS accounts, published results for 2018/19. The Trust told me the accounts published on the BSS website are audited accounts. The level of detailed breakdown published externally is in line with what is prescribed by the Trust.  This is commercially sensitive information and consequentially no further breakdown is available to Mr P, even under the Freedom of Information Act. 

The Trust has already apologised for the delays Mr P has experienced from his first request to register for a place on the BSS examiner course. It has taken a considerable time and I can appreciate this has been very frustrating for him.  Although there have been occasional updates and requests to re-register the actual courses have not run.

The BSS has taken some time to ensure that the new course will meets all its requirements and needs. While I acknowledged the waiting time has been a frustrating period for Mr P I found no evidence to substantiate his allegations that he has been treated unfairly or there has been any maladministration in the course selection process which has disadvantaged him. There were simply better qualified candidates for the role. In relation to the cost of the course and other financial question I found no evidence of irregularity and did not uphold Mr P’s complaints.

 Case no - 1153 complaint about the Trust’s Equality Policy and the means of assessing a reasonable adjustment.

Mr Q has a continuous cruising licence and complains the Trust, though aware of his disability, insisted that he move his boat. He thinks is not fair and reasonable and goes against the Trust’s Equality Policy and possibly the Equality Act. He complains about the Trust’s use of an Equality Questionnaire to gather information on ongoing medical conditions and disabilities. He says the Trust does not understand it has a responsibility to provide proper disabled facilities, including providing proper disabled ramps and pontoons. He believes it is against the Equality Act and its own policy to try and make him move without providing the proper facilities which he can use. He explains he needs good access not only to the boat but to his car.

In 2017, Mr Q developed health problems which have left him registered disabled and using crutches. It became increasingly difficult to adhere to the Continuous Cruising policy and so he applied for a reasonable adjustment to allow him some leeway. Since then, Mr Q has raised several issues with the Trust about its Equality policy, the way it operates the policy and the facilities it has available to its disabled users. This complaint arose following a culmination of issues and his belief that the Trust had not accurately assessed his needs when deciding on a level of reasonable adjustment. 

Boaters without a Home Mooring are required to be engaged in genuine navigation throughout the period of the licence, that is, moving from place to place over a total range of 20 miles or more. The boat must not stay moored in the same neighbourhood or locality for more than 14 days and it is the boater’s responsibility to satisfy the Trust they are meeting these requirements. Requests to differ from these rules because of disability are covered in the Trust’s Equality Policy for Customer Service Delivery. The section headed, Adjustments to our Guidance for Boats without a Home Mooring says the Trust may carry out an assessment of the disability and the impacts on compliance with its guidance and may involve a face-to-face interview. It sets out the factors which may be relevant and examples of the reasonable adjustments it may offer.

The assessment begins with the completion by the boater of an Equality Questionnaire. This gathers information about how the physical and mental health of the respondent affects their abilities to use their boat. Once completed the information is reviewed centrally and in the strictest confidence by an independent internal group, which the Trust says may include welfare, boating and legal colleagues.

There is no dispute that Mr Q is disabled and requires a reasonable adjustment to his cruising pattern. He says the adjustment made demonstrates the people on the panel do not understand his circumstances or chose to ignore them, nobody from the panel had a discussion with him before deciding the adjustment and that it does not take account of the fact there are no suitable facilities for him, as he is on crutches, he cannot move during the winter months. He believes the equality questionnaire is not a proper way to assess his circumstances and has had an unfair impact on him.  

The Trust notified Mr Q of what it considered a suitable reasonable adjustment. It was to remain at one location for periods of 28 days and at another for periods of 7 days and 16 kilometres distance of travel. Mr Q argues he did not accept this and that he made it clear that he is unable to adhere to the modified rules. The Trust says there was implicit agreement in his responses to the Trust and in telephone calls and emails. Having reviewed the evidence, I was satisfied it was reasonable for the Trust to believe Mr Q had accepted the reasonable adjustments from July 2019 onwards.

Mr Q did not feel able to comply with these requirements. He moved once in the two year period, to empty his water tank, after making specific arrangements with the Trust to reserve a mooring for his return. The journey was difficult and did not go to plan. Mr Q’s argument is that, by not providing the facilities he needs at other locations he has effectively been trapped and unable to move. He says the Trust should be able to accommodate the needs of all boaters, including those who, like him, are unable to cruise. 

The Trust advised it cannot agree to a reasonable adjustment which allows for no movement since that would contravene the British Waterways Act 1995 section 17. It has an obligation to manage the waterway, ecological and hydrological reasons as well as considering if there would be a need for residential planning permission. The Trust has provided evidence of emails and notes of conversations with Mr Q that demonstrate it has tried to accommodate his needs taking account of his disabilities.

When the Trust noted Mr Q’s boat had not moved in line with the adjustment, they contacted him to ask why and if they could assist. Mr Q says he did not refuse to comply with the adjustment he was unable to.

Overall, I did not uphold Mr Q’s complaint that he has been disadvantaged by the Trust’s Equality policy and processes. I was satisfied the Trust had tried to work with Mr Q by offering support to move or allowing him to remain in situ when he explained his circumstances. The people who contacted him were all working within their guidelines and adhering to policy and procedures. There was no evidence of bullying or harassment as Mr Q alleged. 

 Mr Q complained about the Equality Questionnaire. I was satisfied the questionnaire is a useful starting point and, when completed and combined with a discussion with the boater, if appropriate and considered necessary, should be sufficient to decide if a reasonable adjustment can be made. Mr Q believes the Trust have been negligent when dealing with his requests for a reasonable adjustment which is fair. The process is a two way agreement where both sides may have to compromise to reach an agreement on what is acceptable. It requires two way communication and the positive engagement of both parties to work well. Although Mr Q claims he has been disadvantaged by the reasonable adjustment set by the Trust, the reality is he did not comply with his side of the arrangement. He did not keep the relevant people at the Trust updated and he did not move his boat as set out in the reasonable adjustment. The fact that the Trust has not taken any enforcement action and has allowed Mr Q to remain in his desired location demonstrated it does work with the boater to help them remain on the water, rather than, as Mr Q alleges, it discriminates against them.

 Mr Q raised issues related to the provision of facilities specifically for disabled boaters. These are policy decisions and so not within my remit. 

Mr Q is seeking through the Ombudsman process to demonstrate that the Trust discriminates against disabled boaters because it has not provided sufficient facilities to allow him to continuously cruise the waterways. I have considered the specifics of Mr Q’s circumstances and have found no evidence of this.

As to whether the Trust has shown a lack of understanding of disability issues, I have to say that there is no evidence from Mr Q’s case that this is so. I do accept that he has genuine difficulties in managing his disability, and that he may be unable to do things which other people would take for granted. The Trust does have certain obligations in respect of people with disabilities, but those obligations are not limitless and it does not seem to me that the Trust has failed to do anything it could reasonably be expected to do, or that it has acted inappropriately. I have made some minor suggestions for changes to help improve the overall effectiveness of the process.