Summary: Mr X complained the Council delayed reviewing the prices for a local train service. He said the Council's fees meant Disabled people were charged more and that this was discriminatory. The Council failed to give due regard to its duties under the Equality Act 2010 when it delayed reviewing the fees. This caused Mr X avoidable frustration for which the Council will apologise. It will carry out staff training to prevent the fault occurring again and complete its Equality Impact Assessment into the fees.

The complaint

1. Mr X complained the Council delayed reviewing the prices for a local train service. The Council charged more for a journey in one direction than in the other, which Mr X said was discriminatory against Disabled people.
2. Mr X said that as a Disabled person, this was distressing.

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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. 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

5. I have considered:
• all the information Mr X provided and discussed the complaint with him;
• the Council’s responses to Mr X’s complaints; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
6. Mr X and the organisation 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

Relevant law and guidance

7. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. One of the protected characteristics is disability.
8. Direct discrimination occurs when a person treats another less favourably than they treat or would treat others because of a protected characteristic.
9. Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.
10. Organisations carrying out public functions must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
11. The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010;
• advance equality of opportunity between people who share a protected characteristic and those who do not; and
• foster good relations between people who share a protected characteristic and those who do not.
12. The broad purpose of the Public Sector Equality Duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.
13. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.

What happened

14. In early 2021, the Council became responsible for a local train service. In May 2021, Mr X complained to the Council. He asked why it charged less to travel in one direction (downhill) than the other (uphill). He said the fee structure was discriminatory against Disabled users because they were more likely to need to use the uphill service.
15. The Council said the fees were different because it wanted to encourage use of the train in the downhill direction. It said this was not discriminatory because the price structure affected all train users. It said that nonetheless, it would carry out an Equalities Impact Assessment (EIA) and review the fees.
16. In September 2021, the Council closed the lift for renovations. It reopened in September 2022. Shortly after, Mr X complained to the Council again. He asked if it had reviewed the fees yet. In early December 2022, the Council responded to say it had not yet carried out the review. It explained the councils in North Yorkshire were being restructured and Scarborough Borough Council was being subsumed into North Yorkshire Council. This is due to happen in April 2023. It said to ensure all fees were consistent across the new council area, the new council would carry out the EIA and review the charges.
17. In late December 2022, the Council started the EIA. It noted the fee structure may impact Disabled people, women and older people but it needed to do a survey to confirm exactly what the impact would be.
18. Mr X complained to the Ombudsman in January 2023. He said the delay in reviewing the fees caused him distress and the differing price structure discriminated against him because his mobility issues meant he had been advised to avoid walking uphill. He therefore had to use the train service on the more expensive uphill journey. He felt other Disabled people would be likewise affected.
19. In March 2023, the Council changed the fees so they were the same in both directions.
20. In response to my enquiries, the Council explained it would carry out the survey into the impact of the fees this summer, when the train is busier.

Findings

21. The Council became responsible for the train service in early 2021 and despite Mr X raising his concerns that the fees were discriminatory to Disabled people, it did not start the EIA until December 2022 and did not review the fees until March 2023, almost two years after Mr X first complained. This delay meant the Council failed to give due regard to its duties under the Equality Act 2010 and specifically, to the Public Sector Equality Duty.
22. The Council began the EIA in December 2022 but has not yet completed a survey to confirm the impact of its fees. It intends to do this in the summer when the train is busier and more representative of the people using the service. In the meantime, it has set the fees to the same price for uphill and downhill journeys. Given the delay that has occurred so far, I have made a recommendation to ensure the Council carries out the survey this summer and completes the EIA.
23. While I note the Council ultimately reviewed the fees itself, it was at fault for suggesting in its response to Mr X’s second complaint that it would delay carrying out an EIA and reviewing the fees until the new council took over responsibility for the train service. The duties set out in the Equality Act apply to the Council until such a time as it no longer exists. It cannot choose to delay acting on potential discrimination.
24. In addition, it is concerning that in response to Mr X’s first complaint, the Council said it did not consider the fee structure to be discriminatory because it applied to everyone equally. This was fault. Indirect discrimination can occur when there is a policy that, without good reason, applies in the same way for everybody but disadvantages a group of people who share a protected characteristic. In this case, it was feasible that Disabled people with mobility challenges are more reliant on the more expensive uphill service than non-disabled people. They may therefore be placed at a financial disadvantage.
25. The faults set out in paragraphs 21, 23 and 24 caused Mr X avoidable frustration as he felt the Council was not taking its legal duties or his concerns as a Disabled person seriously.

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Agreed action

26. Within one month of the date of my final decision, the Council will apologise to Mr X for the frustration caused by its failure to give due regard to its duties under the Equality Act 2010 when it delayed reviewing the train fees, and for the frustration caused by its poor responses to his complaints.
27. Within three months of the date of my final decision, the Council will remind staff they must carry out Equality Impact Assessments without delay.
28. By 23 September 2023 (the end of the summer season), the Council will carry out the survey of train users and complete the EIA. The Council will send the Ombudsman the completed Equality Impact Assessment.
29. The Council will provide us with evidence it has complied with the above actions.

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Final decision

30. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman