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West Berkshire Council (19 020 415)

Category : Adult care services > Transport

Decision : Upheld

Decision date : 06 Oct 2021

The Ombudsman's final decision:

Summary: The Council was at fault for failing to carry out a public consultation about proposed changes to community transport grant funding, this caused injustice as Mr X cannot be sure the Council would have gone ahead with the proposed funding cuts if it carried out a public consultation. We cannot investigate Mr X’s complaint that the Council made untrue and defamatory comments to a local media outlet as we cannot enforce a remedy associated with this. The Council has agreed to our recommendations to remedy the injustice caused.

The complaint

  1. The complainant, whom I refer to as Mr X, complains on behalf of Charity A that:
      1. The Council when deciding to cut its grant funding to Charity A, did not carry out a public consultation, did not consider the stage two equalities impact assessment and did not consider alternative options put forward by Charity A.
      2. Council officers made comments to local media about Charity A which were untrue and defamatory and failed to withdraw these.
      3. The Council exercised poor standards of complaint handling. Among the poor standards of complaint handling Mr X says the Council failed to meet its expected standards of service, failed to provide objective responses and did not take into account relevant information.
  2. Mr X says the cut in funding meant Charity A significantly reduced its service to its clients which impacted on the lives of people with restricted mobility in the district. Mr X says the untrue and defamatory statements made to local media by Council officers have caused Charity A to suffer detriment to its name and reputation.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
  4. If we are satisfied with a council’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

  1. As part of this investigation I considered to complaint made by Mr X and the responses from the Council. I considered the information provide by Mr X. I made enquiries to the Council and considered the information received in response. I sent a draft of this decision and considered comments received in response.

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What I found

Legislation

  1. The public sector equality duty is set out in the Equality Act 2010 which explains that a public authority in the exercise of its functions must have due regard to the need to:
    • eliminate any form of unlawful discrimination (including direct or indirect discrimination, harassment, victimisation and any other conduct prohibited under the Act)
    • advance equality of opportunity between people who share a relevant characteristic and people who do not, and
    • foster good relations between people who share a protected characteristic and people who do not.
  2. The Disability Rights Commission (statutory) Code of Practice says councils are legally obliged to have regard to the public sector equality duty. The Code includes a requirement to assess the impact of policies and practices, or the likely impact of proposed policies and practices, on equality for disabled persons.
  3. Paragraph 3.35 says, where a matter is highly relevant to disabled people, this indicates the need for the Council to ‘take particular care to be able to demonstrate that it has given due regard to the general duty in exercising that function. In these circumstances, a full impact assessment would assist in this.’

The Council’s consultation policy

  1. The Council’s consultation policy says everyone affected by decisions should have the opportunity to have their views heard. The policy says the Council will ensure it has taken all reasonable steps to ensure all directly affected and interested parties have been made aware and offered the opportunity to participate.

What happened

  1. The Council carried out a review of its service provision when setting its budget in 2019/2020. Part of this was to reduce costs for its community transport provision. The Council’s budget for community transport grants was £90,000 and it sought to reduce this by £35,000 to £55,000 per year. The Council sought to re-model the community transport operator grant budgets to achieve this saving.
  2. At this time the Council published a video on its website from the Council leader about the budget proposals for 2019/2020. The Council leader said, “We are currently consulting on some budget proposals for next year which will impact on frontline services. Before we make our decisions we want to understand what impact they would have on the people who use those services and how that impact might be mitigated.”
  3. In February 2018 the Council carried out a stage one equalities impact assessment. This identified that those who are older and/or have mobility needs could be disproportionately affected by the proposals.
  4. On 1 March 2018 the Council wrote to the service providers who delivered community transport in the area with its proposals and consultation documents. The Council asked service providers to send their response to the consultation by 19 March 2018. The Council said it was making available £70,000 of transitional funding which service providers could apply for.
  5. On 15 March 2018 Charity A provided its response to the consultation. It strongly opposed the Council’s plans as it would see a significant cut in funding. Charity A proposed some alternatives including using the transitional funding in 2019/2020 towards maintaining community transport services to avoid cuts to the service while the Council carried out a review into how it could make the savings from its inhouse transport budget. It also suggested the Council should consider how it could make the required savings from its own resources and expenditure, in addition to savings from the administrative staffing costs.
  6. Charity A also separately contacted the Council’s Head of Transport to express its concerns about the proposed cut in funding. Among the concerns it raised was the equality impact assessment was insufficient and the Council needed to carry out a stage two equality impact assessment.
  7. The Council and Charity A met on 9 May 2018 to discuss the concerns about the proposed cuts.
  8. On 25 October 2018 the Council prepared the stage two equality impact assessment. This was dated 1 November 2018. The Council said it was carried out on 25 October 2018 but due to a typing error it was amended on 1 November 2018. The assessment identified the impact of the proposals could be felt more in certain geographical areas of the Council district due to the way these areas were funded in the past. The assessment also identified those older residents and those with disabilities would see the greatest impact as community transport supports a higher percentage of these residents.
  9. On 25 October 2018 the Council’s transport department emailed a copy of the stage two equality impact assessment to other Council officers including Councillors.
  10. On 31 October 2018 the Council wrote to the service providers, including Charity A, with the consultation findings. This resulted in Charity A receiving a community transport grant of £14,580 which was a funding cut of 68%. The Council said community grant funding would be made up of a base payment for each service provider with the remainder of the funding based on passenger journey numbers. The Council also said it had made £70,000 available for service providers to apply for transitional arrangements.
  11. In November 2018 Charity A and the Council exchanged correspondence about the proposal. The Council explained how it had calculated the funding for Charity A. In late November 2018 Charity A applied for some transitional funding. Charity A also requested a meeting with the Council’s Head of Transport to discuss concerns with the proposal and the process followed in reaching it. Charity A said there was no public consultation and only 18 days for it to respond to the consultation. It also said the stage two equalities impact assessment was dated after the consultation findings.
  12. On 18 December 2018 the Council responded to Charity A’s concerns. The Council said the stage two equalities impact assessment does sufficiently highlight the impact of the proposals. The Council said it considered Charity A was better placed to consult with the public than the Council.
  13. Charity A met with the Council’s representative on its board of Trustees who is also a member of the ruling group of the Council. This individual asked the Council to review the stage two equalities impact assessment and consider using the transitional funding to delay the changes to community transport funding. The Council responded and said it wrote the stage two equalities impact assessment before the consultation response, however there were typing errors in the documents so it was changed and redated 1 November 2018. The Council said it cannot use its unused budget to fund next years budget unless this is to pay for something which has already been completed.
  14. In March 2019 the Council met to consider and recommend its revenue budget for 2019/2020. The Council approved the savings and income proposals listed in its revenue budget report. This included the changes to community transport grant funding. The report provided to Councillor’s contained an equalities impact assessment. In addition the report referred to the Council’s public sector equality duty.
  15. On 4 March 2019 Charity A met with the Council to discuss the concerns raised about the proposal. Charity A held a further meeting with the Council about the funding cuts in May 2019.
  16. In June 2019 a local media outlet contacted Charity A about its reduction in funding. The media outlet contacted the Council for comments. On 10 June 2019 Charity A sent letters to some of its service users informing them about the cuts and invited some of its service users to contact the Council should they wish to.
  17. On 20 June 2019 the media outlet published an article which quoted Council officers criticising Charity A. Among other things Council officers were quoted as saying Charity A did not engage with the Council and have not tried to identify alternative solutions.
  18. Charity A met with the Council in early July 2019 in light of the comments made in the news article. The Council and Charity A agreed to issue a joint statement, however they were unable to agree to the wording of a joint statement after producing several drafts. In August 2019 Charity A issued its own media statement with the local media outlet.

Charity A’s complaints

  1. On 31 October 2019 Charity A submitted two separate complaints to the Council.
        1. Charity A complained about the Council’s comments to a local media outlet. It said these were manifestly untrue and defamatory and asked the Council to apologise for these statements and publicly withdraw them. Charity A said the Council had sullied its name and reputation.
        2. Charity A complained about the funding cut to community transport grants. It said the Council did not consider the equalities impact assessment, did not publicly consult on the cuts, and failed to consider alternative options it put forward. Charity A also said the funding cut was disproportionate.
  2. On 29 November 2019 the Council responded to Charity A’s complaint about the funding cut. The Council said:
    • Figures show other providers received similar levels of funding reduction from 2017-2019 than Charity A.
    • It prepared the stage two equalities impact assessment in advance of its consultation response but the document was amended on 1 November 2018 to rectify a typing error. The Council said the assessment does highlight the potential impact to those affected.
    • It considered the proposals put forward by Charity A. It listed these in its response and explained why it did not agree to these alternatives.
    • It felt Charity A was in a better position to consult with its service users than the Council.
  3. On 4 December 2019 the Council provided its stage one response to Charity A’s complaint about Council’s comments to the media. The Council said:
    • Charity A could have done more to engage with the Council before writing to its service users. The Council thought Charity A would show it the letter to its service users before sending it out.
    • The individual quotes were part of a more expansive conversation, but the Council stands by the view Charity A could have done more to engage with the Council to mitigate the impact of the proposals. The Council said comments were not untrue or defamatory.
    • It was willing to issue a joint statement following discussions with Charity A but could not reach agreement on the wording which resulted in Charity A issuing its own media statement.
  4. Charity A asked the Council to consider both complaints at stage two on 20 December 2019 as it was not satisfied with the Council’s response. In relation to the funding cut Charity A said:
    • It received a disproportional funding cut and the examples given by the Council are misleading as a significant amount of their cutbacks were offset by Central Government funding.
    • It does not consider the stage two equalities impact statement was not considered before the recommendations.
    • The Council did not properly consider the alternative options Charity A put forward as the Council has increased administration staffing costs. In addition Charity A disagrees that in house transport service operates efficiently as possible and can identify many hours of unutilised paid driver time.
    • The Council only gave it 18 days to respond to the consultation. This was not enough time to consult with the public. Also the lack of a public consultation was inconsistent with the Council’s policy and other funding cuts in the Council’s budget were put to the public.
  5. In relation to the media comments Charity A said:
    • The person who responded to the complaint was named in the complaint. It was inappropriate for them to write the complaint response.
    • The letter sent out to service users informed them of the truth about the service cuts. The Council did not say why the quotes were a reasonable response to this letter.
    • It disputes the Council asked to see the letter to its service users before it went out. The Council did not mention this in meetings or email correspondence.
    • It disputes the Council’s view that Charity A’s service users have access to alternative provision.
  6. The Council provided its final responses to both complaints on 31 January 2020. In relation to the media comments the Council said:
    • Stage one responses are generally dealt with by the service in question.
    • It disputed Charity A’s claim the Council did not ask to see the letter it sent to service users about the cuts.
    • The officer’s comments to the media outlet were only a small part of the interview and the Council does not have control over how the media outlet presented the comments.
    • It tried to agree a joint statement with Charity A but could not do so.
  7. In relation to the funding cut the Council said:
    • It used a formula to identify where it could make savings from the non-statutory services provided. Each Council area had to find the saving identified through the formula. The previous funding of £45,000 to Charity A enabled it to source its own transport. Other providers who previously had been provided with community transport by the Council had this taken away which allowed them to apply for Central Government funding.
    • It took the stage two equalities impact assessment into account. The Council said the impact of the proposals was addressed in presentations to Councilors and in email communication.
    • It considered the alternative proposals put forward by Charity A.
    • It cannot confirm why it did not carry out a public consultation as the Councilors who decided this are no longer in post. However, officers considered a public consultation not appropriate as service users suffered with learning disabilities and did not want to cause additional anxiety. The Council said it felt service providers were better placed to consult with the public but acknowledged the 18 March 2018 deadline to respond to the consultation would not have given enough time to do this. The Council said the cuts were not approved until March 2019 and this gave Charity A nearly 12 months to consider the impact of the changes and make any alternative arrangements.
  8. Mr X remained dissatisfied and complained to the Ombudsman on behalf of Charity A.
  9. In response to my enquiries the Council provided a record of the enquiries it had received from members of the public concerned about the funding cuts and members of the public who rely on Charity A’s service. This showed less than 20 people had contacted the Council about these funding cuts. Where appropriate the Council attempted to assist them to find alternative services.
  10. The Council also said since this decision was made in 2018/19, it has adopted a new Communications and Engagement Strategy. This sets out how the Council is building closer links between residents and the services they use in order to help design and deliver services which meet local need and includes strengthened consultation with stakeholders.
  11. Mr X provided details of other proposed cuts to services for disabled people which the Council decided against implementing after receiving results from a public consultation. There proposed cuts received between 12 and 23 responses each from a public consultation.

Analysis

Complaint a) The Council when deciding to cut its grant funding to Charity A, did not carry out a public consultation, did not consider the stage two equalities impact assessment and did not consider alternative options put forward by Charity A.

  1. In relation to the public consultation I am satisfied the Council’s consultation policy and the video published on the Council’s website by the Council leader gave the expectation that a public consultation would happen. Therefore the Council was at fault for failing to carry out a public consultation.
  2. The Council was unable to confirm why it decided against carrying out a public consultation at the time as the individuals who made this decision had left the Council and not recorded the decision. This is also fault.
  3. The Council later said it would be more suitable for the service providers to contact their clients and include customer feedback in their consultation responses, however the Council did not provide enough time for service providers to consult with their clients. In response to Charity A’s complaint and my enquiries, the Council said it felt service users may not be able to engage with a public consultation process as many of them had learning disabilities.
  4. If this was the Council’s reason for not carrying out a public consultation this is concerning as many of Charity A’s clients have mobility issues and not learning disabilities. In addition, a public consultation could have engaged with the families and carers of those with learning disabilities and to exclude them from this process on the basis they may not understand the process is fault.
  5. In relation to the equalities impact statement, I am satisfied the Council has considered this prior to its decision in March 2019. While I recognise the stage two equalities impact statement is dated a day after the Council’s consultation response, I can see it was prepared prior to this as it was emailed to Council officers and Councillors on 25 October 2018. In addition the report provided to Councillors from the Council’s annual budget, where the decision to implement the cuts was made, references the Council’s public equality duty. The report also contains the equalities impact assessments as an appendix. Therefore I am satisfied those making the decision had received the relevant information as to the impact of the cuts on the groups most likely affected.
  6. In relation to Mr X’s concerns the Council did not consider alternative proposals put forward by Charity A, I do not find the Council at fault. In Charity A’s consultation responses and further correspondence it proposed ways the Council could make the savings elsewhere. The Council has explained in its complaint response why it did not consider these would be appropriate. I appreciate Mr X disagrees with the Council’s view on these proposals and how the Council has decided to manage its community transport grant spending, however it is for the Council to decide how to do this.
  7. As I have found fault with the Council for not carrying out a public consultation to engage public opinion on the cuts, I must consider whether this has caused significant injustice. The obvious injustice here is that failure to carry out a public consultation would have resulted in a different decision or created enough uncertainty to show Councillors could have made a different decision.
  8. Following the approval of the funding cuts Charity A wrote to some users to explain it would be reducing its service and encouraged some to contact the Council. The Council received less than 20 complaints/queries from service users about the funding cuts. Mr X has provided evidence the Council decided against implementing cuts to services for disabled persons for three other proposals. Each of these proposals received between 12 and 23 responses from a public consultation opposing the proposed cuts.
  9. I cannot say on balance whether carrying out a public consultation for the cuts to community transport grants would have changed the Council’s view. This is because we do not know what the public consultation would have said nor how Councillors or officers would have reacted following the results from a public consultation. However based on the evidence Mr X provided it does lead to uncertainty about what would have happened had the Council carried out a public consultation.
  10. When considering a remedy the Ombudsman Guidance on Remedies says we may award payments of between £100 and £300 for uncertainty. I consider the uncertainty caused by not carrying out a public consultation to be at the high end of the scale. When coming to a figure I have considered that the Council has already made the funding cut, in 2019, and Charity A has had to manage with out this since. The Council did decide against cuts to other services following a public consultation as outlined above. I have also considered we would not know what the public consultation would say or how the Council would have reacted to any results.

Complaint b) Council officers made comments to local medial about Charity A which were untrue and defamatory and failed to withdraw these.

  1. Mr X says Council officers were quoted making untrue and defamatory statements to a local media outlet and this has damaged the name and reputation of Charity A.
  2. The Council’s position is the comments from Council officers were taken out of context by the media outlet. Following the media article which quoted Council officers Charity A and the Council tried to work together to issue a joint media statement to address the situation. Unfortunately they were not able to agree on the wording of this statement and Charity A subsequently issued its own media statement.
  3. By law, I cannot investigate a complaint in circumstances where the complainant could reasonably take his complaint to court. In my view, it is evident that Mr X’s complaint is, in effect, that the Council has defamed the reputation and name of Charity A, by making comments to the media, resulting in harm. Adjudication on questions of defamation usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only the High Court can decide if the Council has published defamatory information and what remedy is appropriate in the circumstances of the case. We cannot decide on the balance of probabilities whether the Council has defamed Charity A and we have no powers to enforce an award of damages or other remedy. On this basis, the restriction I describe in paragraph five generally applies to this element of the complaint and I cannot make a determination.
  4. In addition it was the media outlet who published the comments, not the Council. What the medial outlet published was from an interview with Council officers, not a Council press release. Charity A has released its own statement to the media outlet in response setting out its own position on the matter. Therefore there is nothing further we can add.

Complaint c) The Council exercised poor standards of complaint handling.

  1. Mr X says the Council failed to meet its expected standards of service, failed to provide objective responses and did not take into account relevant information.
  2. I have not found fault with the Council’s complaint handling. The Council has considered each of Charity A’s complaints at stage one and two of its complaints procedure. In relation to Mr X’s views that the Council has not properly considered the complaints and not provided objective responses based on how it considered the evidence, I do not find fault. I recognise Mr X disagrees with the content of the Council’s responses and how it has come to its conclusions, however this does not mean there is procedural fault in its complaint handling.

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Agreed actions

  1. Within one month of my final decision the Council agreed carry out the following and provide evidence to the Ombudsman it has done so:
    • Apologise to Charity A for not carrying out a public consultation on the proposed cuts to community transport grant funding.
    • Pay Charity A £300 in recognition of the uncertainty caused from not carrying out a public consultation.
    • Review procedures to ensure that if the Council decides not to carry out a public consultation in the future this is properly recorded with reasons.

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Final decision

  1. I have completed my investigation and found there was fault by the Council in its decision making process, which caused injustice. The Council has agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman

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