Bristol City Council (202210537)

REPORT

COMPLAINT 202210537

Bristol City Council

29 February 2024

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example, whether the landlord has failed to keep to the law, followed proper procedure, followed good practice, or behaved in a reasonable and competent manner.

Both the leaseholder and the landlord have submitted information to the Ombudsman, and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about:
1. the landlord’s response to the leaseholder’s concerns about parking restrictions in the designated car park.
2. the landlord’s response to the leaseholder’s concerns about roadside parking restrictions.
The Ombudsman has also considered the landlord’s complaints handling.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this Service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why aspects of a complaint will not be investigated.
Paragraph 41(d) of the Housing Ombudsman Scheme states that the Ombudsman cannot consider complaints which, in the Ombudsman’s opinion:

d. concern matters in respect of Local Housing Authorities in England which do not relate to their provision or management of social housing, or the management of dwelling which they own and let on a long lease.

Roadside parking is managed by the council, but not in its capacity as a landlord. Accordingly, this Service cannot investigate this aspect of the complaint. Should the leaseholder seek to pursue this aspect of the complaint, he may wish to contact the Local Government and Social Care Ombudsman (LGSCO). While the complaint regarding off-road parking is outside of the Ombudsman’s jurisdiction, the parties’ communications from this period in relation to this issue have been referred to in other sections of this report to provide relevant context.

Background and summary of events

The leaseholder owns a 3 bed maisonette in an 11 storey block. The leaseholder lets the property out as an HMO, for which change of use planning permission was obtained in 2020.
The lease dates from 1988 and was granted for 125 years. The lease states that:
1. The tenant and any persons visiting him may use (in common with others similarly entitled) any area within the grounds of the building which may be provided for the parking of vehicles for the parking of private motor vehicles only.
2. The tenant is obliged to observe restrictions and regulations specified in the Schedule or such other restrictions or regulations as the council may from time to time make and publish.

c. The landlord has the power to add or substitute any of the rules and regulations which the Council deem necessary or expedient for the safety care or cleanliness of the building or any part thereof or for securing the comfort and convenience of all tenants in the building provided always that no such further rules or regulations shall subject the tenant to any unusual or unreasonable burden.

The landlord has not been able to provide a copy of its Parking Management Policy pre-dating 2021. Its Car Parking and Designated Parking Management Policy, dated 31 December 2021, states that:
1. most designated car parks will be unreserved and free of charge. Tenants can use any available parking bay. Each household will receive only one permit (if they can prove that they own a vehicle) unless there are exceptional circumstances.
2. multi-storey blocks need a parking permit to use designated parking attached to their block.
3. where a resident has health or social care needs, a carers permit is available. One carer’s permit per household is available, but one permit can cover up to three carer vehicles.
4. Estate management staff and contractors working on planned programme sites will be allowed a staff parking permit. All other council staff have the use of a pool car which includes a parking permit.
The landlord’s “Resident’s Parking Scheme Terms and Conditions” June 2022 provides that households which, since 1 August 2018, have a formal Car-Free or Low Car Advice attached to any planning consent are not eligible for either Visitors’ Permits or Residents’ Permits for roadside parking.
The landlord’s leaseholder handbook gives details of what costs the service charges cover, which includes repair and maintenance to the building and for the landlord’s insurance and management costs.
The landlord operates a 2 stage complaints policy. Complaints should be acknowledged within 3 days and a response provided within 15 working days. If a complainant is dissatisfied with the response, they receive at Stage 1, they can request that it is escalated to Stage 2. Stage 2 complaint responses should be provided within 20 working days. The landlord’s states that it follows the Ombudsman’s guidance relating to compensation.
The property is registered with the local authority as a property in multiple occupation. The leaseholder has requested that this Service consider that his tenants were also impacted by the parking restrictions. The leaseholder’s tenants have a legal relationship with the leaseholder. This relationship does not extend to the leaseholder’s landlord. Therefore, in line with the Scheme para 25(a) this Service will not consider how the landlord’s parking restrictions affected the leaseholder’s tenants.

Summary of events

The council brought in a number of Traffic Regulation Orders (TROs) between 2014 and 2019 to regulate traffic in parts of the city. The council had identified issues with commuters and non-residents parking on sites and blocking access for essential services. The Orders addressed traffic restrictions and determined that excluded from the definition of ‘resident’ who would be entitled to a road-side parking permit, were any “person whose residence has been identified as a car free/low-car development on or after 1 August 2018.”
The landlord’s Resident Parking Scheme Terms and Conditions was first published in 2019 and which included the criteria for a parking permit as outlined above.
In or around June 2019, the leaseholder has complained that his contractors were not permitted to park in the designated car park and that they had told him that they had been informed that their vehicles would be towed if they did so. This has caused problems when they have been undertaking essential maintenance works to the leaseholder’s property. The leaseholder has said that the landlord’s own contractors did not have to pay to park when they were undertaking essential repairs to tenanted properties. He felt that this was unfair as he paid annual service charges and other contributions through major work costs that tenants did not have to meet. The leaseholder was informed by the landlord that the matter was being considered by the policy team and in the interim, he was given temporary passes for contractors on a discretionary basis to use when they were at the property. The landlord sought and obtained legal advice in relation to this issue.
The leaseholder made a further request for temporary passes in July 2019, and this was permitted for a 3 week period from 28 July 2019 to 18 August 2019 for two vehicles.
The leaseholder made a further request for temporary passes in January 2020, but was informed by the landlord that he was no longer entitled to them and that he would need to make arrangements for contractors use the pay and display parking on the street. The landlord stated that it had explained its position to the leaseholder at this time. A record of this discussion has not been provided to this Service.
In 2020 the leaseholder applied for planning permission for change of use of the property from residential to a small house in multiple occupation (HMO). Planning permission was granted on 30 July 2020 subject to conditions. There were restrictions applied to the permission entitled “Restriction of Parking Permits – Existing Controlled Parking Zone/Residents Parking Scheme.” This stated that “You are advised that the Local Planning Authority has recommended to the Highways Authority which administers the existing Controlled Parking Zone/Residents Parking Scheme of which the developments forms part, that the development shall be treated as car free/low-car and the occupiers are ineligible for resident parking permits as well as visitors parking permits if in a Residents Parking Scheme”.
An account for visitors permits in the name of the landlord of the property was set up in February 2021. Visitor permits were allocated on 23 March 2021. However, from 25 May 2021 the leaseholder and residents at the address were blocked from applying for roadside residents permits or visitors permits in accordance with the landlord’s policy. The leaseholder was told that his contractors must use the pay and display parking instead.
The leaseholder has advised that he contacted the landlord around this time to make a complaint, but he had received no response. A copy of the complaint has not been provided to this Service.
In 2021, sewage water flooded the property from another flat. Extensive works were required to the leaseholder’s property The leaseholder advised that he had a conversation with the landlord on 28 May 2022 regarding the flood. He said the landlord had informed him that it was looking into his lease and the parking issue, and that someone would get back to him about it, but he was not contacted again for a further 13 months.
The leaseholder has reported that he spoke to one of the landlord’s officers on 26 July 2022 who confirmed that on-street parking had been blocked for his property but did not offer an explanation as to why.
After contact with this Service, the leaseholder wrote to one of the landlord’s officers on 3 August 2022 about the restrictions he considered were unfairly imposed in relation to parking on and off road. He requested that his email be treated as a complaint. He received an out of office response.
The leaseholder made another complaint on 18 August 2022, this time using the form on the landlord’s website. The landlord acknowledged his complaint the same day and confirmed that it aimed to provide a written response by 9 September 2022.
The landlord’s stage 1 response was issued on 8 September 2022. It stated that:
1. The parking policy in place allows all residents in a block to apply for a permit (one per property) to park in the car park on a first come first served basis. This did not extend to contractors of residents at the property.
2. The aim of the scheme was to give priority to residents over visitors particularly outside of normal working hours, discourage an unauthorised parking and to apply as fair and consistent a priority scheme as possible.
3. It could not uphold the leaseholder’s complaint. Although the policy has changed since the taking up of the lease, the leaseholder is not treated any differently to other residents in the block as all permits are issued one per flat, which the leaseholder or resident of the flat can apply for under the same restriction as other residents of the block.
4. The policy does not allow for permits for contractors or for private maintenance staff, which would apply to all residents at the block.
The leaseholder contacted the landlord on 8 September 2022 and asked to escalate his complaint. On 14 September, the landlord acknowledged the leaseholder’s complaint and confirmed that it would respond by 6 October 2022.
The landlord’s stage 2 response on 5 October 2022 stated that:
1. In relation to the issue regarding onsite parking, the landlord has provided a full response in its stage 1 response. When planning permission was granted from change of use to a small HMO, it included restriction of parking permits. The property was impacted by a low car development restriction and the restriction stated that the occupiers were ineligible for resident parking permits as well as visitors parking permits if in a Residents Parking Scheme.
2. Traders could purchase trader permits which were valid in the residents’ parking scheme areas but not in the central parking zone.
3. Landlords can purchase a permit if they own 10 or more properties.
4. The leaseholder was directed to a page on the landlord’s website about permits for medical and social care.
5. The landlord declined to uphold the leaseholder’s complaint.

Scope of the investigation

Further under paragraph 42(f) of the Scheme, the Ombudsman may not consider complaints which, in the Ombudsman’s opinion:

f) concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, other tribunal, or procedure.

The leaseholder told the landlord that he believed that the landlord’s parking policy puts it in breach of the terms of the leaseholder’s lease. The leaseholder referred the landlord to the relevant terms of his lease which are outlined above.
The landlord considered that, under the terms of his lease, the leaseholder or residents were permitted the use of an area within the grounds for parking of private motor vehicles only. This meant that parking was permitted on a first come first serve basis. A car parking permit policy had since been introduced which allowed one permit per property for designated parking areas.
After carefully considering all the evidence, in accordance with paragraph 42(f) of the Housing Ombudsman Scheme, the complaint that the parking policy was contrary to the provisions of the leaseholder’s lease is outside of the Ombudsman’s jurisdiction. This is because it is not the role of this Service to interpret the terms of a lease where there is a dispute. It would be more appropriate for this matter to be dealt with by a court or tribunal. Furthermore, the decisions of the courts are legally binding, whereas the Ombudsman’s decisions are not. The leaseholder should obtain independent legal advice should he wish to pursue this aspect of his complaint.
This investigation will therefore focus on the reasonableness and appropriateness of the landlord’s actions in its response to the leaseholder’s concerns about parking, considering its legal obligations, policies and procedures and good practice.
The leaseholder and landlord have provided evidence dating back to 2018-19 in relation to this matter. This Service notes that the leaseholder has raised this matter with the landlord over several years and details of earlier reports have been helpful in providing a clear picture of the history of this complaint to date and the landlord’s interventions. For the purpose of this investigation, however, these previous reports and the landlord’s responses are referenced for contextual purposes only. This is because the Ombudsman is limited to investigating only those issues that have progressed through a landlord’s complaints procedure and then brought to the attention of the Ombudsman within a reasonable timescale. Therefore, this investigation will focus on events from February 2022 onwards.
It is also noted that there has been a significant amount of correspondence between the leaseholder and the landlord. Whilst the leaseholder’s dissatisfaction with the landlord is noted, the report will not be addressing each specific issue or incident referred to. Rather, the Ombudsman has carefully considered all the available evidence and this report will take a view on the landlord’s overall handling of the matter.

Assessment and findings

The landlord’s response to the leaseholder’s concerns about parking restrictions in the designated car park.

There were no records provided by either party between July 2020 and May 2021 in relation to this issue, although it is noted that the leaseholder had raised a separate complaint regarding a flood at the property during this time, which had been referred to this Service under case 202110794 .
The leaseholder has raised concerns that the landlord had obtained legal advice at this time in relation to this issue, but this was not shared with him. Given the lack of evidence covering this period of the complaint, it is unclear whether the landlord had agreed to share legal advice with the leaseholder. This would be unusual, as the landlord’s legal team would be instructed to provide advice to the landlord and not to the leaseholder. Legal advice is privileged, and therefore the landlord would not be obliged to share this with the leaseholder. It is not clear, however, if this was communicated to the leaseholder at the time.
The landlord has not provided this Service with a copy of the parking policy in force prior to 2021. Its Car Parking and Designated Parking Management Policy (December 2021) states that each property is entitled to one designated parking permit, which is available on a first come first served basis. The policy does not include provision for contractors, but this would apply to contractors for all residents, and not just leaseholders. This Service considers that the landlord’s approach was consistent with its policy, and it had appropriately exercised discretion to allow visitor permits in the past while it enquired whether the policy could be reviewed.
The leaseholder has stated that he had made enquiries of the landlord on 5 May 2021, 28 May 2021, 27 July 2022, and 3 August 2022 in relation to this issue, but officers had not responded to his contact. It is noted that there were a number of the landlord’s teams involved with the leaseholder during this time, including leaseholder services, estates management, repairs and insurance and it is not evident that information was shared with different teams or that matters were escalated to the correct team promptly. This led to the leaseholder being provided with contradictory information about parking restrictions and the matter reaching a standstill without a resolution. It would have been appropriate for the landlord to have provided the resident with a definitive response outside of the complaints procedure as to the reasons for parking restrictions, how it related to him and his tenants and contractors, and the appropriate forum for challenging this decision, in order to manage his expectations. The landlord has not provided this Service with any evidence that this was done, and the leaseholder was therefore put to time and trouble in pursuing a full response.
The landlord’s communication with the leaseholder in relation to this matter was lacking and therefore this Service has made a finding of service failure in relation to this aspect of the complaint. The landlord is ordered to pay the leaseholder £100 in compensation.

Complaint handling

The leaseholder has said that it made a complaint to the landlord in 2021 regarding this issue, but he did not receive a response. It is important to highlight that the Ombudsman is an impartial service which can only base its decisions on the evidence provided. A copy of this complaint has not been provided by either party. Further, this investigation is confined to the period from January 2022 to October 2022.
The landlord acknowledged and responded to the leaseholder’s complaints In August and September 2022 within its target timescales outlined in its complaints procedure. The leaseholder did include with his initial complaint that he was dissatisfied with the communication from the landlord, specifically enquiries he made in May 2021, May 2022, and the beginning of August 2022. This was not addressed by the landlord in either of its complaint responses. Paragraph 5.6 of the Ombudsman’s Complaint Handling Code states that “Landlords must address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate.” The landlord’s failure to address the leaseholder’s complaint about poor communication was a service failure. Accordingly, the Ombudsman orders that the landlord pays the leaseholder £75 in compensation.
This Service also notes that the landlord’s stage 1 target response deadline in its current complaints policy is not compliant with the Ombudsman’s Complaints Handling Code 2022. While this had been addressed by the landlord in its self-assessment dated 2022, no further assessment has been published on the landlord’s website. The landlord is reminded that it must undertake an annual assessment against the Code and publish the results, to ensure its complaint handling remains in line with its requirements.
The Ombudsman’s new Complaints Handling Code (2024) will become statutory from 1 April 2024, meaning that landlords will be obliged by law to follow it. The Code aims to achieve best practice in complaint handling and ultimately to provide a better service to residents. Most member landlords must now undertake a self-assessment against the 2024 Complaint Handling Code by 30 June 2024.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in its response to the leaseholder’s concerns about parking restrictions in the designated car park.
In accordance with paragraph 41d of the Housing Ombudsman Scheme, the landlord’s response to the leaseholder’s concerns about roadside parking restrictions is outside of the Ombudsman’s jurisdiction to investigate.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in its complaints handling.

Reasons

The landlord acted in accordance with its policy in declining to provide the leaseholder with additional parking permits for contractors. However, its communication with the leaseholder was lacking, and he was caused distress and inconvenience in having to pursue this.
The landlord complied with its target response times outlined in its complaints policy. However, it did not address the leaseholder’s complaint about communication in its response at either stage 1 or stage 2. This was not in accordance with the Ombudsman’s Complaint Handling Code which provides that the landlord must address all points raised by the complainant.

Orders and recommendations

Within four weeks of the date of this report, the landlord is to pay the leaseholder the amount of £175 which comprises of:
1. £100 for the distress and inconvenience, time and trouble caused to the leaseholder by its failure to communicate effectively with the leaseholder in relation to his parking enquiries.
2. £75 for the distress and inconvenience caused to the leaseholder by its complaint handling failures.