Summary: Mr C says the Authority should take payments for services over the phone as well as online as its failure to do so adversely affects those mainly the elderly, who do not use the internet. The Authority was at fault. It has agreed to carry out an equality assessment, apologise to Mr C and give him two tickets for a walk.

The complaint

1. The complainant, who I have called Mr C, says the Authority did not allow, and should have allowed, him and others who do not have access to the internet to pay for its services over the phone.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. 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)
3. If we are satisfied with a public body’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

4. I read the materials provided by Mr C. I wrote an enquiry letter to the Authority asking it to explain its policy decision in this case.
5. I sent my draft decision to Mr C and the Authority and invited their comments. Both accepted my findings. I made my final decision in largely the same terms.

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What I found

What should happen

The Equality Act 2010

6. The Equality Act 2010 protects people who have ‘protected characteristics’. Age is a protected characteristic.
7. Discrimination can be either direct; aimed deliberately against people with a given characteristic, or indirect; likely to affect people with a given characteristic disproportionately. A decision which affects old people more than others, , even if it was not intended to do so, would be discriminatory.

The Public Sector Equality Duty

8. The Public Sector Equality Duty set out in the Equality Act provides that, when public authorities carry out their functions, they must have due regard to the need to eliminate unlawful discrimination and advance equality of opportunity.
9. This means that public authorities must consciously consider their duties to those with protected characteristics. The courts will decide if a body has done enough to comply with this duty.

Fettering discretion

10. Where a public body adopts a policy and applies it rigidly without making provision for those that may be adversely affected, or providing an alternative in exceptional circumstances, the Ombudsman will usually find fault. This is because there are so often unforeseen circumstances which test the policy to the extent that clinging to the policy will create an absurdity or an injustice.

What happened

Background

11. Mr C is a retired man who does not have the ability to pay for services over the internet. He lives in a town not far from the Peak District National Park.
12. The Authority is an independent authority funded by government and tasked with conserving and enhancing the natural beauty of the Peak District National Park. It provides services such as walks for visitors to the Park.

The complaint

13. In May 2019, Mr C wanted to join an event organised by the Authority. He spoke to an officer at an advice centre who told him he could pay for the course over the phone if he contacted the Authority’s headquarters. On phoning headquarters, he was told that the Authority only accepted payment online.
14. Mr C complained to the Authority. He said that the failure to accept payments other than online excludes many people, such as himself, who do not have the ability to pay over the internet.
15. The Authority dismissed his complaint both at stage one and two of its corporate complaints process. It said that he did not have to use a computer; he could also use a tablet or smartphone.
16. Mr C complained to the Ombudsman.

Was there fault causing injustice?

The Authority’s position

17. The Authority says it was obliged to take difficult decisions in 2014 because of a 36% cut to its overall budget. Its statutory duty is to conserve and enhance the Peak District National Park. It had previously provided many discretionary functions, such as walks and courses, free of charge. Those wishing to attend had been able to turn up and take part without booking.
18. However, the cuts meant the Authority had to cut some activities. It said it wanted to continue to provide services such as guided walks so that it could continue to enable those from areas roundabout to enjoy the Park.
19. The Authority therefore decided, it says, to maintain some discretionary functions but to charge for them. It decided that, to do this, it would have to adapt its pre-existing booking software and this would mean that it would only be able to take bookings online.
20. The Authority says that, because of this, it is impossible to take bookings over the phone for reasons of cost and practicality.
21. The Authority says that, taking this approach has enabled it to maintain the walks and other functions. It says the cost of allowing phone bookings would be prohibitive and might mean the functions themselves were no longer viable.

Findings

22. The Ombudsman’s position, at a time when local government and related bodies face grave cuts, is to be understanding of the difficulties that bodies within our jurisdiction face but to insist that this cannot allow them to ignore their legal obligations.
23. Public bodies have a duty to consider the impact of their actions and decisions on those with protected characteristics. This includes the elderly.
24. Office for National Statistics figures show that, while the majority of UK residents are frequent internet users, there is a small but shrinking cohort who are not. The 2019 figures show that 7.5% of adults have never used the internet, down from 8.4% in 2018. These non-users are, the statistics show, overwhelmingly elderly.
25. In response to our enquiries about how it considered the impact of taking bookings online only impacted on those without internet access, the Authority said that it had considered this and so allows bookings online in its offices. It says that service users can also use publicly accessible computers such as at local libraries using. It also says people without home internet access can use public wi-fi hotspots and access their website via phone or tablet.
26. None of this addresses the fact that there is a group of elderly people who cannot, or feel they cannot, make payment by internet at all, whether at home, by phone or at a library. It is not the lack of broadband but the lack of knowledge and familiarity with technology that excludes them from the Authority’s services. Such people are unlikely to even recognise the distinction between tablets and PCs, wifi and broadband.
27. Nor does the Authority’s decision to allow people to book online at their offices affect most of their service users who live, so the chief executive says, not in the Peak District itself but in the urban centres surrounding the Park. The Authority also recognises that the option of using computers in libraries is no longer an option in many places.
28. Therefore, the decision made did not, in my view, accord with the Public Sector Equality Duty. It did not properly consider those who are not and have never been online, the vast majority of whom are old. It is, therefore, a faulty decision.
29. The decision to require payment by one method only also fetters the Authority’s discretion to make exceptions in exceptional circumstances. This too is fault.
30. The Authority has suggested that the costs of offering an alternative would be prohibitive. That cannot be, in itself, a reason not to allow for exceptional circumstances nor to comply with the Public Sector Equality Duty.
31. Further, it is not clear, on the information given, how the costs would be as high as the Authority fears. The chief executive has stated that there are problems with the card payment system if it were to be used over the phone. She has stated that there would be attendant staffing costs for bookings taken over the phone. She has stated that, in the case of a phone booking, the cost of processing the transaction might, in a worst-case scenario, swallow up the entire fee for the event or walk being booked.
32. The chief executive therefore suggests that offering the facility to book by phone could threaten the Authority’s ability to offer discretionary services at all.
33. However, given that the Authority says it takes approximately 4,000 online bookings per year and the chief executive also says the Authority receives ‘up to four calls per year initially requesting telephone bookings’, this fear seems somewhat melodramatic. This amounts to 0.1% of all transactions.
34. Even if all of four of these ended up booking over the phone, the staff costs and time would be, over the year, negligible. And it would still be open to the Authority to strongly encourage online booking during these calls. Some callers might be persuaded to book online.
35. Further, the cohort of those who are completely ‘offline’ is shrinking year on year. This would not pose a substantial risk to the Authority’s finances.
36. In any event, given the Public Sector Equality Duty, concern about cost alone cannot justify the policy. Those without internet must also be catered for.

Agreed action

37. Having accepted my decision, the Authority has agreed that:
1. Within one month of the date of this decision, it will write to Mr C and apologise to him for the inconvenience caused. It will offer him and a companion two free places on a guided walk of their choice.
2. Within two months, it will carry out an Equality Impact Assessment;
3. Within three months, it will:
1. consider the best way to amend its policy of not accepting bookings and payments by phone and find the most cost-effective way to make this possible for exceptional circumstances; and
2. Write to the Ombudsman to explain what steps it has taken to remedy the fault found.

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Investigator's decision on behalf of the Ombudsman