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Pendle Borough Council (20 007 992)

Category : Other Categories > Other

Decision : Upheld

Decision date : 23 Jul 2021

The Ombudsman's final decision:

Summary: Ms Y complains about the Council’s failure to properly consider its duties under the Equality Act when assessing how Ms Y’s disability impacts her use of a barrier which is currently owned and maintained by the Council. We find the Council failed to have full regard to its duties, and it should apologise to Ms Y. However, the Council is now arranging a long-term solution which should resolve the problems Ms Y experiences.

The complaint

  1. Ms Y’s property is accessed through a park owned by the Council and via a locked barrier. Due to her disability, Ms Y says she now experiences difficulty when trying to open the barrier and as a result she feels isolated and unable to leave her home.
  2. Ms Y says the Council has not complied with its duties under the Equality Act to make ‘reasonable adjustments’ to help overcome the difficulties which she faces when trying to use the barrier.

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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. 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. During my investigation, I discussed the complaint with Ms Y and considered any information she submitted.
  2. I made enquiries of the Council and considered the requirements of the Equality Act (2010).
  3. I issued my findings in a draft decision and invited comments from Ms Y and the Council. I considered any comments received before making a final decision.

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What I found

What happened

  1. Access to Ms Y’s property is through a barrier, which is owned and maintained by the Council. The barrier is always locked. Ms Y, and her neighbour, both have a key for access. The purpose of the barrier is to prevent anti-social behaviour and driving on nearby parkland, and it was in situ when Ms Y moved into the property.
  2. Whilst the barrier did not present any difficulties when she first moved, Ms Y says her health has since declined and she now has great difficulty in unlocking and locking the barrier. Consequently, she feels isolated and unable to leave her home unless she has support.
  3. Ms Y also reports that an ambulance was unable to access her property when she had a seizure. She reported this to the Council, and the Council installed a key-safe and made the code available to the relevant authorities. However, Ms Y says this is not a long-term solution because the key-safe is regularly vandalised and, on occasion, the key has been removed.
  4. As a temporary solution, Ms Y has sometimes kept the barrier unlocked. However, she says the Council has made clear that this is prohibited, and the barrier should remain locked at all times. Ms Y says she has tried to seek a long-term solution with the Council over the past three years but has had little success.
  5. Dissatisfied with the lack of action, and the Council’s disregard for her disability, Ms Y submitted a formal complaint about the Council’s failure to adhere to the requirements of the Equality Act. In response, the Council said, “In my view, it is arguable whether the Council has a duty in this instance under the Equality Act, not lease because in this matter the Council is not engaged in the provision of a service to you… the installation of an electronic gate would not be reasonable if it was done mainly at the Council’s cost… the only solution appears to be the installation of an electric barrier which would have to be done at your own expense”.
  6. Ms Y approached the Ombudsman for an impartial review of her complaint.

Was there fault in the Council’s actions causing injustice to Ms Y?

  1. The Equality Act provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It provides the UK with discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society.
  2. The Ombudsman cannot find that a body in jurisdiction has breached the Equality Act. However, we can find a body at fault for failing to take account of their duties under the Equality Act. In response to Ms Y’s complaint, the Council said it had no duty to make adjustments for Ms Y under the Equality Act because she is not prevented from accessing Council services.
  3. However, in my view, the Council failed to properly consider its full range of duties. This is because the Equality Act makes clear that “…, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage”.
  4. The Act describes a physical feature as:
      1. a feature arising from the design or construction of a building
      2. a feature of an approach to, exit from or access to a building
      3. a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or;
      4. any other physical element or quality.
  5. The Council has not satisfied the Ombudsman that it properly considered whether it had a legal duty to make adjustments for Ms Y. Its failure to do so caused injustice in the form of unnecessary and avoidable time and trouble to Ms Y. The Council should apologise to Ms Y for this.
  6. However, in response to my enquiries, the Council confirms it has considered the case further and is arranging for the removal of the barrier which it will replace with an alternative access which will be accessible for Ms Y. The Council explains it has not yet started the necessary work because the parkland is currently transferring ownership to the local Parish Council, however the Council remains in communication with the Parish Council and an order will be given shortly for the necessary work to take place.
  7. It is premature for the Ombudsman to comment on the suitability of the new access because work has not yet started. If Ms Y has any concerns about the new access, she should raise them with the Council at the appropriate time.
  8. Other than to apologise to Ms Y for the unnecessary time and trouble caused by the Council’s failure to properly consider its duties, there is no further action to recommend as the underlying issue about Ms Y’s access will now be resolved.

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Agreed action

  1. Within four weeks of my final decision, the Council will:
    • Apologise to Ms Y for the time and trouble caused by its failure to properly consider its Equality Act duties and the impact of the “physical feature” owned and maintained by the Council.
  2. Within six weeks of my final decision the Council will also:
    • Write to the Ombudsman and Ms Y with a progress report on the new access. If work to the new access has not yet started, the Council should provide anticipated timescales.

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Final decision

  1. We have completed our investigation with a finding of fault causing injustice for the reasons explained in this statement.
  2. The Council has proposed a remedy for the underlying complaint. The apology we have recommended is an adequate and proportionate remedy for any outstanding injustice to Ms Y.

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Investigator's decision on behalf of the Ombudsman

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