Summary: Mr X complained the Council failed to consider its Public Sector Equality Duty when it allowed a football club to erect fencing and a gate around a football pitch on public land it leases from the Council. The Council was at fault. It failed to have due regard to its Public Sector Equality Duty when Mr X reported he cannot open the gate independently because of his disability. It meant Mr X has been unable to routinely use the public land since July 2020 because of his disability. The Council agreed to apologise to Mr X to recognise the distress, frustration and time and trouble this caused. It also agreed to offer to meet with Mr X to discuss his needs and then work with the football club to review the gate having due regard to its Public Sector Equality Duty.

The complaint

1. Mr X complained the Council failed to consider its Public Sector Equality Duties when it allowed a sports club to erect fencing with gated access around a football pitch on public land it leases from the Council. Mr X said the only access to the pitch is via a gate which his disability prevents him, and others with certain disabilities from being able to open.
2. Mr X said the gate excludes him, because of his disability, from being able to enjoy access to the land which is open for the general public to enjoy. It has caused him upset, frustration and time and trouble.

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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 may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
5. 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

6. I spoke to Mr X about his complaint and considered the information he provided.
7. I considered the Council’s response to my enquiry letter.
8. I considered the Equality Act 2010 and relevant case law.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Relevant law

10. The Public Sector Equality duty comprises of three limbs, set out in the Act. It says a Public Authority must, in the exercise of its functions have due regard to the need to:
• Eliminate discrimination, harassment and victimisation and any other conduct that is prohibited by or under the Act;
• Advance equality or opportunity between persons who share a relevant protected characteristics and persons who do not;
• Foster good relations between persons who share a relevant characteristic and persons who do not share it.
11. The Act says, having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having dure regard, in particular to the need to:
• Remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
• Take steps to meet the needs of persons who share a relevant characteristic that are different from the needs of persons who do not share it, and;
• Encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
12. The Act lists the relevant protected characteristics which includes disability.

Case law

13. Case law has outlined what public authorities need to do to have due regard to the aims set out in the general equality duties. These are sometimes known as the ‘Brown Principles’ and form part of the duty as set out in the Act. The principles include:
• Decision-makers must be aware of their duty to have due regard to the identified needs.
• The duty is non-delegable.
• The duty is continuing.
• It is good practice for an authority to keep a record showing that it has considered the identified needs.

R(Brown) v Secretary of State for work and pensions (2008) EWHC 3158

What happened

14. Mr X has a disability which causes a lack of manual dexterity and hand weakness. He lives near a field which is Council-owned land and open to the public to use. Mr X said he regularly used the field for walks and exercise. A local football club leases the field from the Council and uses some of it as a football pitch. The original licence and lease in place between the Council and the football club states, ‘members of the general public shall be entitled at all times to have access to the Playing Field without let or hinderance’.
15. In 2020 the football club contacted the Council with proposals to carry out improvements to the football pitch. The proposals included a three-sided fence to protect the surface of the pitch. The Council agreed to the proposals which did not require any planning permission. The football club however erected a fourth fence and a gate which gave access to the football pitch. The Council supported these changes retrospectively. The terms and conditions signed in 2020 between the Council and the football club state the club are ‘not to prevent the general public having access to the Playing Field except if they prevent or interfere with any organised sporting activities carried out by the club’.
16. Mr X contacted the Council. He said the gate was preventing him accessing the football field. Mr X said his disability meant he was unable to open the gate independently. The Council said it would ensure the football club did not close or lock the gate and would ask it to pin the gate open when it was not in use for football matches.
17. Mr X remained unhappy and complained to the Council. He said the gate was regularly closed meaning he was unable to enjoy use of the football pitch, as he was able to previously, due to his disability. Mr X pointed out the licence and terms and conditions and said the football club was not complying with them by closing the gate. He said he, and anybody else with certain disabilities or mobility issues were excluded from using the field. Mr X said the Council was not complying with its Public Sector Equality Duty.
18. The Council responded to Mr X. It said the Council leases the whole field and not just the football pitch to the club. It said most of the field can be freely accessed. The Council said it was challenging to fully comply with the Equality Act however it had made reasonable adjustments by asking the club to leave the gate pinned open. The Council said it would instruct its officers to work with the football club to review the gate and it mechanisms to make further reasonable adjustments.
19. Records show the Council emailed Mr X in late 2020 stating the club had changed the gate lock. It provided Mr X with a picture of the lock. Mr X responded stating the gate was still too large and heavy for disabled people to open independently. Mr X asked the Council if it planned any other changes to the gate.
20. Mr X remained unhappy and complained to us. He said the football club continue to close the gate meaning he cannot access the football pitch purely due to his disability. Mr X said he wanted the Council to ensure the football club complies with the terms of the lease and its Public Sector Equality Duty by removing or altering the gate.

The Council’s response to my enquiry letter

21. The Council said the football pitch remains a small proportion of the field which remains available for the public to use. The Council said the football club is abiding by the terms in the lease and erected fencing to better protect the playing pitch. It said the fence and gate do not prevent access across the football field. It says one half of the gate has been removed. It says the fence and gate are to protect the football pitch playing surface but not to prevent public access. The Council said it does not have the staff or resources to monitor or manage the gate regularly. The Council said it has offered to meet with Mr X to discuss the matter however he has declined.
22. Following the Council’s response to me Mr X confirmed that half the gate had been removed for a short time but said the football club had now replaced it. He said the gate is still in place and is still restricting his access due to the mechanism in place.

My findings

23. The football club lease the entire field from the Council, therefore it is the Council’s responsibility to ensure the club, as tenants, abide by the licence and terms and conditions of the lease. It is the Council’s responsibility to ensure it meets its Public Sector Equality Duty which case law has dictated is continuing and non-delegable.
24. Mr X had made it clear that the gate in place restricts him from accessing the football pitch due to his disability. He also made it clear that the football club routinely fails to ensure the gate is pinned open. There are no records showing the Council or the football club completed an equality impact following Mr X’s complaint. There is no evidence the Council itself offered to meet with Mr X either during, or after the complaint response to gain a better understanding of the matter.
25. The entirety of the field, including the football pitch is open for the public to use and enjoy apart from when in use for sporting activities such as a football match. The Council’s Public Sector Equality Duty therefore is to ensure all members of the public, including those with disabilities can access the football pitch, in line with the terms of the lease, regardless of whether it is only a small proportion of the field. The Council has failed to ensure the gate to the football pitch enables those with disabilities, such as Mr X to use it, and therefore, it has not had due regard to its Public Sector Equality Duty, which is fault.
26. The faults have meant Mr X has been unable to routinely access and enjoy the football pitch when the gate is closed since July 2020, which has caused him distress, frustration and time and trouble. The faults are also likely to cause others with similar disabilities an injustice.

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Agreed action

27. The Council agreed within one month of the final decision to:
• apologise to Mr X to recognise the distress, frustration and time and trouble caused to him by its failure to have due regard to its Public Sector Equality Duty to ensure Mr X could access the football pitch on public land.
• offer to meet with Mr X to discuss how it can meet his needs to access the football pitch. Following that meeting the Council should work with the football club and carry out any work identified as necessary on the gate to ensure it meets its Public Sector Equality Duty.

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Final decision

28. I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman