Summary: Mr X complained about the Council’s failure to make reasonable adjustments to enable him to access services and engage in local decision making. The Council was at fault for failing to consider protected groups when it relocated outdoor exercise equipment. It was also at fault for failing to provide reasonable adjustments for Mr X.

The complaint

1. Mr X complained he was excluded from the consultation process when the Council decided to relocate outdoor exercise equipment to a new position, opposite his home. He said the Council did not provide an accessible version of its engagement survey.
2. Mr X also complained the Council failed to make reasonable adjustments for him when he tried to make a freedom of information request, and when he tried to renew his blue badge parking permit.
3. Mr X has experienced noise nuisance and anti-social behaviour (ASB) as a result of the exercise equipment’s new location. He feels he lost the opportunity to comment and potentially influence the decision. He also feels he has been disadvantaged and lost his independence because of the Council’s failure to make reasonable adjustments.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. As part of the investigation, I considered the complaint and the information Mr X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. Mr X and the Council 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

What happened

9. I have detailed below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.

Outdoor exercise equipment

10. The Council installed outdoor exercise equipment in two locations several years ago. The equipment reached the end of its natural life and the Council planned to replace it. The Council wanted to acquire better, longer lasting equipment. Due to the cost, the Council could not replace the equipment at both locations. It therefore decided to remove all the old equipment, and install the new equipment at a new location where it served most people.
11. The Council consulted two local stakeholder groups in February 2021 about its plans. It also included details in its regular parks and open spaces newsletter, which it emailed to members of the public who had signed up to the newsletter.
12. Local ward councillors met in May 2021 to discuss the plans and choose a new location for the equipment. After the meeting, the Council placed a poster at the chosen location. The poster explained the Council removed the old exercise equipment and showed an aerial picture of the new chosen location. It included a link to the Council’s website where more details were available.

Data requests

13. Mr X is blind. He needs correspondence in audio format. He tried to make a freedom of information (FOI) request by telephone in April 2022, but Mr X heard nothing back.
14. Mr X asked his local councillor to make a FOI on his behalf. A Council officer told Mr X the Council was unaware of his earlier request.
15. Mr X complained to the Council by telephone on 19 May. He also made a subject access request (SAR).
16. The officer who took the details of Mr X’s complaint phoned him back several weeks later to ask if Mr X had received a response yet, and if he still wanted to complain. Mr X confirmed he was still waiting for a response, and he did still want to complain.
17. The Council responded to Mr X’s complaint on 8 August 2022. It apologised for the delay, explaining it misfiled his complaint. It also said he was correct he can make a SAR or complaint verbally. It said new staff started over the past six months and their training had promoted self-service. However, it said it clarified with all staff that customers can also make verbal requests. Due to demand, this might sometimes mean staff making an appointment to call someone back.

Blue badge renewal

18. Mr X’s blue badge expired in February 2022.
19. Previously, Mr X renewed his blue badge by telephone. He phoned the Council in May 2022 to renew his blue badge again. This time, the Council refused. It referred him to independent organisations who could apply on his behalf. Mr X enquired with several organisations, but they wanted to charge him for the service.
20. Mr X contacted the Ombudsman. We spoke to the Council, and it arranged for an officer to renew Mr X’s blue badge by telephone.
21. In July 2022, Mr X complained to the Council about its refusal to let him renew his blue badge by telephone.
22. A Council officer phoned Mr X in August to read out the complaint response to him. The response said the Council’s approach is to ask customers to self-serve, with support from family, friends, or other organisations if needed. It said this is its first approach because it does not have capacity to take supported applications for everyone.
23. The Council also said it has several systems that are not yet aligned, which causes issues setting flags to show customers’ specific needs. The Council said it is undertaking a complicated reorganisation following the amalgamation of local councils. It said it is in the process of introducing a single customer relationship management system. Meanwhile, it said it would place a note Mr X’s blue badge account detailing his support he needs. The Council offered to meet Mr X to better understand his needs and look for a solution to apply across the Council.

My investigation

24. The Council told me because it was replacing existing outdoor exercise equipment there was no need for formal consultation or equality impact assessments. It did not hold any formal consultation or contact any residents directly.
25. The Council said ward councillors made the decision after extensive discussions on the chosen new location. It also said there was communication between ward councillors and stakeholder groups, plus an online survey promoted via its parks and open spaces newsletter. The Council considers this was suitable and proportionate communication and engagement.
26. The Council said about 16,000 people sign up to receive its e-newsletter, which was accessible to all those who signed up. The Council said the software platform for its website meets and, where possible, exceeds the global web accessibility standard.
27. The Council said its ASB team received complaints about the new location in August 2022, but has not had any further complaints. Mr X told me he has given up complaining about the noise. It often occurs at night. When he phoned the Council’s out of hours line, they told him to call the police. Mr X said a councillor has now raised the issue with the police, who agreed to incorporate the area into their rounds.
28. The Council told me it considered the standards set out in the ‘Neighbourhood Equipped Areas for Play’ guidance when installing the new exercise equipment. The guidance suggests a minimum distance of 30 metres to nearby housing. The Council said the guidance applies to ball courts and play equipment. It said Mr X’s home is about 40 metres away from the equipment. The Council said this shows officers completed due diligence when siting the equipment.
29. The Council said its refusal to let Mr X make an FOI request by phone was a misunderstanding by staff. It confirmed the public can make a request by phone and it has reminded staff about this.
30. The Council apologised Mr X could not access the services he needed in a timely manner.
31. However, the Council said its staff are aware of the need to consider reasonable adjustments. It said it has specific guidance about this as well as compulsory equality and diversity training. It said it is reviewing this training.
32. The Council said it reminded all service units to ensure all case file systems have a note of Mr X’s accessibility needs. The Council does not have a single record for residents, but it plans to put in place a single customer relationship management system by the end of 2023. This will include appropriate flags for any customer who needs them.
33. The Council said it gave Mr X a single point of contact in November 2022. The officer called Mr X fortnightly. This has now reduced to monthly. The Council said it aims for Mr X to be able to call its customer contact centre to access the support he needs in the same way as other residents.

Analysis

The Equality Act 2010

34. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all.
35. 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.
36. The broad purpose of the Public Sector Equality Duty is to integrate consideration of equality into the day-to-day business and decision making of public authorities.
37. Decision-makers should understand the potential impact of their decisions on people with different protected characteristics and they should identify potential mitigating steps to reduce or remove adverse impacts.
38. The equality duty does not set out a particular process for assessing impact on equality. It is about informed decision-making.
39. Councils have a duty to ensure they anticipate the needs of people with a wide range of disabilities when developing policies and making decisions. In most cases they will carry out an equality impact assessment to do this.
40. Where a service is aware of a person’s disability it should anticipate their needs and make any necessary reasonable adjustments in consultation with them.
41. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
42. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

Outdoor exercise equipment

43. The Council could not show it considered its public sector equality duty when deciding the location of the new exercise equipment. That is because the decision was made informally at local level by ward councillors. There is no evidence equality formed part of their consideration, and no evidence they considered the needs or views of a range of different people, or people with protected characteristics. There was also no equality impact assessment. That was fault.
44. The Council said no equality impact assessment was required here. However, this was a new location for outdoor fitness equipment. It was also brand-new equipment. A new location and new equipment mean new equality impact considerations which may differ from the previous location and equipment. If the Council had carried out an equality impact assessment it may have identified members of protected groups, such as Mr X, who should be notified.
45. The Council said it did not need to formally consult on the decision. However, having chosen to notify the public and invite comments, it should have considered how it could do this while ensuring people with protected characteristics were also informed and had the opportunity to participate.
46. When the Council notified the public about its plans it did so via an e-newsletter which the public had to subscribe to online. It also placed a poster at the site for the public to read.
47. While online services have the benefit of quick and easy access for most people, it has the potential to disadvantage people who need services face to face or by telephone to meet their needs. The same is true of the poster, which will be accessible for most people but not for all.
48. Again, I have not seen evidence the Council considered the needs of people with protected characteristics when it came to notifying the public. That was fault.
49. There was no fault in the way the equipment itself was installed at the Council’s chosen location. It followed relevant guidance to ensure the equipment was not too close to nearby homes. I understand Mr X is leaving issues of noise and ASB to the police for the time being.

Data requests

50. The Council accepted it was at fault when it initially refused to allow Mr X to make a FOI request by telephone.
51. The Council is aware of Mr X’s disability. As part of a previous investigation by the Ombudsman, the Council agreed to make a record of his need for adjustments.
52. Staff in the customer contact centre should have been aware of Mr X’s needs, and should also have been aware of their general duty to offer reasonable adjustments. Unfortunately, that was not the case here.

Blue badge renewal

53. The Council also accepted it was at fault when it first refused to let Mr X renew his blue badge by telephone.
54. As above, the Council is aware of Mr X’s disability. He has held a blue badge for several years and the service should have anticipated his need for adjustments to renew his blue badge.
55. The Council signposted Mr X to services to help him apply online. These services would mean Mr X incurring a fee. It is not acceptable for people with protected characteristics to have to pay to access the same services other people can access for free.
56. Also, as I have addressed above, while there are benefits to online services, they have the potential to cause disadvantage, as they did to Mr X here.
57. It should not have been too demanding for the Council to make adjustments for Mr X. The blue badge parking permit exists to help people with protected characteristics. That being the case, the Council’s blue badge service should have been well aware of the need to make its service accessible.

Injustice

58. The Council placed barriers in front of Mr X accessing its services and it failed to make reasonable adjustments at the first opportunity. This caused Mr X frustration. He felt the Council took away his independence, as he needed help from other organisations, or his local MP, before the Council made adjustments.
59. Mr X has complained to the Ombudsman before, about similar issues with the Council failing to make reasonable adjustments. Unfortunately, the situation did not sufficiently improve. That caused Mr X further frustration.
60. The Council’s fault caused Mr X avoidable distress. He was also put to unnecessary time and trouble seeking help and pursuing complaints.

Action taken by the Council

61. Mr X currently has a single point of contact he can discuss issues with on a monthly basis. This shows the Council is trying to make adjustments for Mr X. However, at present, he still cannot access Council services in the same way as a person without protected characteristics. Up to this point, the Council has been reactive in its help offered to Mr X. It must do more to anticipate the needs of people with protected characteristics.
62. The Council is striving toward Mr X being able to use its customer contact centre in the same way as other people. It has plans for a central computer system so all service areas will be aware of individual service users’ needs for adjustments.
63. The Council has provided evidence of the equality training it gives to staff, and I am satisfied it is committed to making improvements in this regard.

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Agreed action

64. Within four weeks of my final decision the Council agreed to:
• Repeat its apology to Mr X and confirm its commitment to working with him to make reasonable adjustments for him to access its services.
• Pay Mr X £300 to recognise the distress its faults caused, and the time and trouble Mr X was put to.
65. The Council will review its services in three months’ time to ensure its staff routinely ask people about reasonable adjustments. It will then give feedback on its findings to the Ombudsman.
66. The Council should provide us with evidence it has complied with the above actions.

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Final decision

67. I have completed my investigation. The Council was at fault for failing to consider protected groups when it relocated outdoor exercise equipment. It was also at fault for failing to provide reasonable adjustments for Mr X.

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Investigator's decision on behalf of the Ombudsman