Summary: The complainant (Mrs X) said the Council failed when considering her Clear Air Zone (CAZ) exemption application. The Council gave her misleading and incomplete advice and failed to exercise its discretion. We found fault with the Council which caused Mrs X injustice. We recommend the Council apologise, re-consider its decision and make a payment for Mrs X to recognise her distress.

The complaint

1. Mrs X complained about the Council:
• rejecting her CAZ exemption application, despite her meeting the requirements;
• providing misleading and incomplete advice;
• failing to exercise its discretion when she filed necessary evidence on the day of introducing CAZ.
2. Mrs X says the Council’s failings negatively affected her business and mental health.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I spoke with Mrs X and considered the information she provided.
7. I made enquiries with the Council and considered the information it provided.
8. I reviewed ‘Principles of good administrative practice’ issued by the Local Government and Social Care Ombudsman in 2018.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative framework

10. A relevant vehicle may be treated as a non-chargeable vehicle subject to:
• qualifying for the listed exemptions;
• submissions of any application forms required by the Council;
• providing the stipulated supporting information. Information required to support each application for exemption will be displayed on the Council’s website. (Bradford Clean Air Zone Charging Order 2022, Annex 2, Part 2)
11. A local small and medium enterprise means any small or medium sized enterprise employing less than 250 people with an annual turnover of less than £45 million and a total balance sheet of less than £40 million which has its registered office or principle place of business in the district. (Bradford Clean Air Zone Charging Order 2022, paragraph 1)
12. A vehicle qualifies to be considered under a local SME exemption if the local SME was its registered keeper on the appointed day, excluding taxis or Private Hire Vehicles. (Bradford Clean Air Zone Charging Order 2022, Annex 2, Part 2, paragaraph 5(2))

The Council’s exemption information

13. For local SME vehicles the non-compliant vehicle for which the exemption is being applied for must have been owned be the applicant prior to 26 September 2022.
14. There are no exemptions available for vehicles purchased from the 26 September 2022.
15. The requirements for the exemption application depend on the type of a vehicle:
• Showman’s vehicle – the V5c document must show that the vehicle is a showman's Heavy Goods Vehicle or haulage vehicle;
• Local SME vehicle – the vehicle must be registered within the Council’s area.

What happened

First CAZ exemption application

16. Mrs X applied for the CAZ exemption in the third week of April 2022. She asked for the exemption available for showman’s vehicles, attaching the photographs of her vehicle, certificate of motor insurance and a vehicle tax reminder.
17. In the beginning of May the Council asked Mrs X for the further evidence:
• proof of membership in the relevant guild;
• all pages of the vehicle registration document (V5c).
18. Responding six days after the Council’s deadline Mrs X asked to extend the timescales to provide a proof of guild membership as she was still waiting for this document. She confirmed sending a full V5c form. In its response to my enquiries the Council said the document was not attached to the email correspondence but the assessor must have missed this.
19. Following the Council’s correspondence with a new deadline for filing the document, Mrs X explained she needed even more time and provided her reasons for that.
20. The Council wrote back with the new deadline but also pointed out that Mrs X should not be too much concerned about complying with the dates but should send the document when it was available.
21. When granting the next extension, the Council explained Mrs X would be charged for entering a zone if by 26 September 2022 she still could not send the proof of her membership in the guild.
22. In the third week of July Mrs X asked the Council’s advice on the best choice for her exemption application. She said the membership rules had changed and under the new ones she found it hard to register. Because of the time pressure she was, therefore, considering changing the grounds for her application either to apply as a unique business or a business with an office/storage space registered in the Council’s area. In her letter to the Council Mrs X also explained the nature of her business.
23. Responding on the same day the Council said it needed the following evidence:
• Proof that business/organisation runs from the Council’s area, such as council tax invoice, business rates, rent or lease agreement;
• All pages of the V5c document;
24. In the beginning of August Mrs X sent the Council pages one and three from the V5c document and a copy of a rental agreement for the office/storage space in the Council’s area.
25. As the Council did not consider the rental agreement enough to prove that Mrs X’s business was registered in its area, in the second week of August it asked her again to send documents about her business location as well as a second page of V5c.
26. A week later Mrs X sent a second page of the V5c document and copies of her tax returns letters with the address in a different council. The business accounts, she said, were not easy to send due to their size.
27. The Council was not satisfied Mrs X proved her business was registered in the Council’s area. In its correspondence two days later it asked Mrs X for the full accounts or business rates bill and a proof of membership in the relevant guild or association. In the response to my enquiries the Council explained it chose to explore again the alternative of the exemption as a showman’s vehicle rather than a business registered in the Council’s area. There was no explanation, however, included in the letter to Mrs X. The Council’s letter suggested it needed both pieces of evidence.
28. Following the receipt of Mrs X’s accounts with no address, at the end of August the Council again asked Mrs X for a proof of her membership in the guild or association. The Council did not say why it was again asking for this evidence.
29. After Mrs X stated she did not have a proof of her membership, at the end of August the Council rejected her CAZ exemption application. It gave the following reasons:
• Ineligible business/organisation outside the Council’s area;
• No proof of membership in the professional organisation relevant to Mrs X’s business which would allow to accept the application for an out of district exemption;

Second CAZ exemption application

30. At this stage Mrs X stated she intended to register her business in the Council’s area as a limited company. The Council confirmed it would be able to consider Mrs X’s application as a local business if by 26 September 2022:
• her limited company was registered in the area;
• her vehicle was at least Euro 4 standard for emissions;
• her vehicle had a Diesel Particulant Filter (DPF) fitted.
31. At the end of the first week in September Mrs X filed a new CAZ exemption application for a local SME vehicle. She attached pages one and three of the V5c document and the lease agreement for the office/storage space. Mrs X sent page two of the V5c and her tax returns two days later.
32. The Council confirmed it could consider Mrs X’s application further if she started a limited company in the Council’s area. The Council said to be eligible for this type of exemption Mrs X’s vehicle must be at least Euro 4 standard for emissions and have a DPF fitted. The Council asked for the relevant evidence and reminded Mrs X of the date when the CAZ was starting.
33. Following a telephone conversation with the Council, Mrs X wrote to query the Council’s request for the evidence of Euro 4 emissions standards and a DPF as this would be relevant for school buses but not local SME vehicles.
34. In its correspondence to us the Council could not explain why it advised Mrs X her vehicle needed to be at least Euro 4 standard for emissions and have a DPF fitted as this is not needed when a person applies for a local SME vehicle exemption.
35. A week later, with no response from the Council, Mrs X contacted it again. Two days before the deadline set for Mrs X to provide her evidence, the Council rejected Mrs X’s application because her business was not registered in the Council’s area.
36. Mrs X’s business was registered as a limited company in the Council’s area on 26 September. Two days later Mrs X sent the Companies House record to the Council.
37. The Council treated this correspondence as a review request and responded in the beginning of October. It upheld the Council’s original decision because the change of address for Mrs X’s business did not happen before 26 September.

Analysis

38. In our guide ‘Principles of good administrative practice’ we listed the basic rules which councils should follow when dealing with their residents. I found the Council failed to:
• Follow councils’ policy and guidance. The Council’s advice on what was needed for the second CAZ application was contrary to the information on its website.
• Ensure information and any advice provided is clear, accurate and complete. On several occasions within both application processes the Council provided Mrs X with incorrect or misleading information. In particular:
1. When telling Mrs X about the documents needed for her application the Council said she would need to send the full accounts or business rates bill and a proof of membership in the relevant guild or association. The Council failed to advise these were alternative options, depending on the type of application;
2. After receiving Mrs X’s application under the local SME vehicle category, the Council asked her for the evidence of compliance with the criteria relevant for a different type of application. There is no evidence the Council corrected this advice;
3. The Council’s responses to Mrs X’s correspondence were not complete and not effective in helping her to understand the process. In particular there is no evidence the Council responded to Mrs X’s request for advice from July 2022.
• Ensure decisions and actions are proportionate, appropriate and fair. The Council based its decision on the fact, that Mrs X failed to register her business in the Council’s area before 26 September. Such rigid approach is not justified, however, by the Charging Order introducing CAZ in the Council’s area or by the exemption information on the Council’s website. The Council’s website states there would be no exemption available for the vehicles bought after 26 September. There is no mention, however, of the vehicles bought before 26 September, as was in Mrs X’s case, but whose owners registered their businesses in the Council from 26 September. In such circumstances the Council has discretion what approach to take in each individual case. Failure to exercise it can only be seen as fettering the Council’s discretion.
• Acknowledge mistakes and put them right quickly and effectively. In response to our enquiries the Council admitted a few errors in the advice given to Mrs X. There is no evidence, however, it communicated with Mrs X to recognise its mistakes, apologise and provide her with correct and comprehensive advice.
39. The Council’s failings listed above amount to fault, which caused Mrs X injustice. She spent much time communicating with the Council and trying to get a clear information on what is needed for different types of applications. The Council’s advice caused her confusion, uncertainty and delayed resolution of the matter.
40. As explained under paragraph four of this decision we cannot criticise the Council for making a specific decision but as we found fault in the process leading to it, we will recommend the Council to review it.

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Agreed action

41. To remedy the injustice caused by the faults identified, we recommend the Council within four weeks of my final decision complete the following:
• Send a written apology to Mrs X;
• Re-consider Mrs X’s CAZ application from the beginning of September 2022;
• Pay Mrs X £300 to acknowledge the unnecessary frustration, caused by the Council’s failings throughout her application process.

The Council should provide us with evidence it has complied with the above actions.

42. We also recommend the Council within three months of my final decision remind all the staff in the team dealing with the CAZ exemption applications of the need to provide accurate and comprehensive advice to the applicants rather than rely on generic correspondence.

The Council will provide us with the evidence it has happened.

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Final decision

43. I uphold Mrs X’s complaint. I found fault in the way the Council handled Mrs X’s Clear Air Zone exemption application which caused her injustice. The Council has accepted my recommendations, so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman