Summary: Mr X complains the Council to make changes he wants which he says will enable him to swim safely at the local leisure centre. The issue at the heart of the complaint is whether there has been a breach of the Equality Act 2010. Such decisions are matters for the courts, not the Ombudsman.

The complaint

1. Following a change of management, the rules for lane swimming at the local leisure centre changed. Mr X complains the Council has refused to make the changes he has asked for which he says are necessary for him to swim safely.

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The Ombudsman’s role and powers

2. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint

(Local Government Act 1974, section 24A (6), 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)

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How I considered this complaint

4. I considered information provided by Mr X and the Council. Mr X commented on the draft version of this decision.

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What I found

5. The Equality Act 2010 imposes a duty on bodies providing a service to make sure they do not discriminate against people with disabilities (or other protected characteristics) and, where possible, to make “reasonable adjustments”.
6. If someone considers they have been discriminated against, they can make a claim in the county court.
7. Mr X wears lenses/glasses to correct his vision. He cannot wear these at the swimming pool, therefore, while swimming, he has a severe sight impairment. He has been swimming regularly at the centre since 2003. He attends the male only swim every week. He says he has always swum up and down the pool using the brightly coloured rope that separates the lanes of the pool for guidance.
8. In April 2019 new management introduced a system requiring users to swim in a circular clockwise direction. Mr X says he has had altercations with other swimmers because he has hit them and must try and talk to people on entering to pool to make them aware of his visual disability.
9. Mr X asked the centre to take the sign away for the hour he swims. Alternatively, it should let him put up his own sign advising he is partially sighted and is swimming up and down against the rope.
10. The Council says the signs requiring people to swim in a clockwise direction complies with its health and safety control measures for lane swimming. It says it has agreed with Mr X that the lane can be a single lane so he can swim up one side and back down the lane rope. It also says it will place coloured markers on the poolside tiles for him to make him aware of when the end of the pool is close if this would be helpful.
11. Mr X agrees the Council’s suggestions of coloured markers and a single lane will be an improvement. However, his main concern is making sure others in the pool are aware that he is swimming up and down, rather than clockwise as he has been involved in altercations where he has crashed into someone.

Assessment

12. The central issue here is whether the Council is complying with its legal duties under the Equality Act. The Ombudsman considers complaints about flawed administration. Whether something is “reasonable” is a matter of law rather than administration.
13. In its final response to Mr X the Council says members of the centre management have spoken to the Royal National Institute for the Blind (RNIB) and another local charity. It says these organisations support the proposals the leisure centre have suggested. It agrees the provision of services should be inclusive to all service users, however acknowledged it is not always possible to cater for every individual need.
14. The Council is satisfied that it has complied with its duties to make reasonable adjustments to enable Mr X to use the swimming pool safely. Mr X disagrees and wants the Council to implement further changes. This is not something the Ombudsman can arbitrate on. First, it is not part of the Ombudsman’s role to interpret the law. Secondly, unlike the courts, the Ombudsman cannot make binding decisions.

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Final decision

15. I will not investigate this complaint. Mr X wants a determination of whether the Council has gone far enough in terms of the adjustments it has made in response to his request for changes which he says are necessary to enable him to swim safely. This would be a determination on whether the Council has considered its duties under the. For the reasons outlined in paragraph 14 above, this is a matter more suited to the courts.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman