Summary: There was no fault in the Council’s decision to implement a road closure, as part of its response to the COVID-19 pandemic. Although this limited access to some disabled parking bays, we are satisfied the Council considered its equality duties and ensured there was adequate provision elsewhere. In the absence of fault, we cannot recommend a remedy relating to any perceived loss of trade to the complainant’s business arising from the road closure.

The complaint

1. I will refer to the complainant as Mr C.
2. Mr C complains about the Council’s decision to limit road access to a local town centre, in order to promote social distancing. He says this has made it difficult for disabled people to access the town centre, and caused a loss of trade to his business.

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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 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)
5. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

6. I reviewed Mr C’s correspondence with the Council, along with a map showing the road layout changes the Council made, and a copy of its Equality Impact Assessment.
7. I also shared a draft copy of this decision with each party for their comments.

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What I found

Background

8. Mr C owns a small business near the centre of a market town. There is a one-way traffic system through the town centre and market square.
9. There is a movable traffic barrier controlling access to one road leading to the market square. For several years the barrier has been closed to most traffic each Saturday between 10am and 4pm, to reserve the town centre for pedestrians. This means that several disabled parking bay and loading bays are inaccessible during this time.
10. Towards the end of the first UK COVID-19 lockdown, the Council decided to extend this restriction so that it applied seven days a week. This was one of a number of changes it made to the road layout in the town, to allow more pedestrian space and promote social distancing.
11. On 10 June, Mr C made a complaint to the Council. He said the closure of loading bays was having a significant impact on his newly-reopened business, as it could not take deliveries. He also complained that disabled people could no longer park in disabled bays, despite Government guidance they should avoid public transport.
12. Mr C also complained about some other aspects of the new arrangements, which do not form part of his complaint to the Ombudsman.
13. The Council replied several hours later on the same day. It explained highways and public health teams had been working together, along with other local authorities, to devise adaptations to roads and footways to support social distancing. The adaptations were focused on providing space to pedestrians, and had been introduced urgently.
14. The Council said it had logged Mr C’s feedback and would investigate a possible solution, although it cautioned him it might not “be able to answer [his] specific request” because of the number of enquiries it was dealing with.
15. Mr C replied to reiterate the safety issues he had described in his original email. He asked the Council to escalate his complaint to stage 2. The Council replied on 16 June to confirm it had registered Mr C’s complaint at stage 2, and gave a target date of 16 July to respond.
16. On 17 June, Mr C emailed the Council to withdraw his complaint. He said that a compromise had been reached, following lobbying by the local MP and other figures, and he was now satisfied with the changes.
17. On 24 July, Mr C emailed the Council again. He said that, having heard rumours of the pedestrianisation of the town centre, his and several other businesses were “formally joining together” to oppose these changes. Mr C asked for assistance making a Freedom of Information request, and that his complaint be re-opened.
18. In a further email on 28 July, Mr C elaborated that he had now seen a copy of a plan for changes to the town centre. He said he did not consider the proposals took into account the risks of a list of factors, including the loss of disabled parking and the loss of business.
19. On 29 September, the Council provided its response to Mr C’s stage 2 complaint. Again, I will not reflect its comments on the elements of the complaint which Mr C has not brought to the Ombudsman.
20. First, the Council made a general point about the introduction of changes to promote social distancing. It said the Government had issued guidance for local authorities in May 2020, with the expectation they would make “significant changes to road layouts” for this purpose. The Council said the guidance recommended local authorities undertake consultation with local business, but did not make this mandatory. In its case, the Council said it had considered the practicalities of consultation, but felt it could not do this, and implement the actual changes, within the time available to it.
21. With regard to Mr C’s point about disabled parking, the Council said there was a “net loss” of six spaces within the closure area. It acknowledged that Mr C considered one bay could accommodate six or seven vehicles, if parked diagonally, but explained this bay was intended only for parallel parking for three vehicles. The Council also said that, when it had visited the town, most of the alternative disabled bays had not been in use.
22. The Council said the closure was an extension of a pre-existing policy, although one that had only applied on Saturdays previously. However, it noted an additional ten disabled bays had been created when the original policy was introduced, and that these bays gave direct access to the high street.
23. The Council listed the recommended walking distances given in Government guidance for people with different types of disabilities. It said the ten alternative bays were within the recommended distance of the high street for all but one disability category. However, there were another six bays even closer to the start of the high street, within the recommend distance for all categories, along with another two available on the market square itself (accessible by a different route, away from the closed road).
24. The Council questioned why Mr C found these arrangements acceptable on a Saturday, but not on the other days of the week. It did not uphold this element of his complaint.
25. With regard to Mr C’s complaint about a loss of business, the Council said there was a general principle, endorsed by Parliament, that businesses could not claim compensation for a loss of business caused by roadworks. It explained businesses have no right to a particular level of passing trade, and so disruption from roadworks is considered an ordinary risk of running a business.
26. The Council acknowledged Mr C’s complaint was not about roadworks, but considered the situation to be similar enough to apply the same principle. It did not uphold his complaint.
27. Mr C referred his complaint to the Ombudsman on 9 December.

Legislation

28. The Government issued statutory guidance to local authorities on making changes to road layouts and usage, in response to the COVID-19 pandemic.
29. The statutory guidance says:

“[Effective] engagement with the local community, particularly at an early stage, is essential to ensuring the political and public acceptance of any scheme. The department advises engagement as good practice even where there is no legal requirement to do so for the measures being proposed.

“Authorities should seek input from stakeholders during the design phase of any scheme, in particular:

• Local businesses, including Business Improvement Districts, those based on local high streets and those that are temporarily closed, should be informed and given an opportunity to comment to ensure proposals meet their needs. The need for kerbside access for deliveries and servicing should be taken into account and balanced against the need to provide protected space for walking and cycling, for example through the use of floating loading bays …
• Local disability groups should be consulted at an early stage of scheme development.

“Engagement should include publicity and on-street information warning of forthcoming changes to road layouts so that drivers are aware of them and can adjust their route and future journeys if necessary.

“Accessibility requirements apply to all measures, both temporary and permanent. The Public Sector Equality Duty still applies, and in making any changes to their road networks, authorities must ensure that elements of a scheme do not discriminate, directly or indirectly, and must consider their duty to make reasonable adjustments anticipating the needs of those with protected characteristics, for example by carrying out Equality Impact Assessments on proposed schemes.”

Analysis

30. The Ombudsman’s role is to review councils’ adherence to procedure when making decisions. If a council has followed the correct process, considered all relevant information, and given clear and cogent reasons for its decision, we generally cannot criticise it. We do not make decisions on councils’ behalf, or provide a route of appeal against their decisions, and we cannot uphold a complaint simply because a person disagrees with what a council has done.
31. In this case, Mr C complains about the Council’s decision to expand its Saturday road closure scheme to seven days a week. He says this has had a disproportionate impact on disabled people, including himself and some of his customers, as well as affecting the amount of trade his business has received. Mr C has also commented that the Council did not consult local businesses before imposing the changes.
32. There is some disagreement between Mr C and the Council over the number of disabled bays in the ‘closure’ area. Mr C says one bay can accommodate six or seven vehicles, not the three counted by the Council. He also says the Council has failed to count four disabled bays in the market square area. He considers there has been a net loss of 14 bays.
33. I understand the one bay to which Mr C refers has traditionally been used for diagonal side-by-side parking. However, I have viewed photographs of this bay online, and, as the Council says, there are no markings to indicate this is how drivers should park. Rather, it was designed for parallel parking, and is supposed to accommodate only three cars.
34. There is no suggestion the Council has ever sought to enforce parallel parking in the bay, and so I can understand why drivers have taken to parking side-by-side instead. The fact remains I cannot find fault by the Council for only counting this as three spaces, if that was the intention when it was created.
35. I also cannot agree with Mr C the Council has disregarded four bays in the market square. The Council says there are two bays outside a particular (named) business, and one other dedicated space. Again, using online photographs, I have verified this. I cannot see any four additional bays missing from the Council’s count.
36. I am therefore satisfied the Council is correct to say the closure affects six disabled bays.
37. The Council considers this loss is mitigated by the alternative bays which are available. This includes ten bays which are 77m from the start of the high street, another six 35m from the high street, and two others on the market square, accessible from a different direction not affected by the closure. It has also explained how these bays generally meet the distance requirements for disabled access to local businesses.
38. I understand Mr C disagrees with this assessment. He points out that most of the bays are on one side of the market square, meaning some businesses are considerably further away from them than others. He has described his own particular difficulties with being forced to park some distance from his destination. Mr C also says the alternative bays are often full.
39. However, it is for the Council to decide how to arrange disabled parking provision to serve any particular location. Even without the added complication of a road closure, it is inevitable that some businesses will be further away than others from the nearest viable parking place. This fact, in isolation, does not mean the Council is at fault.
40. Nor can I criticise the Council simply because the available bays are popular and often full. This is unfortunate, but there is clearly a limit on the number of parking bays which can practically be created; and so, again, it appears inevitable there will be times when they are all in use.
41. I am conscious the statutory guidance highlights that local authorities’ Public Sector Equality Duty still applies, even when under pressure to make urgent changes. This means the Council was still responsible to make reasonable adjustments, avoiding discrimination, and ensuring it assessed the impact of its proposed changes.
42. However, it is not for the Ombudsman to decide whether the Council’s decision is ‘reasonable’ or whether it has discriminated against anybody; these are questions of lawfulness which can only be determined by a court. Rather, our role is to ensure the Council has followed the correct administrative procedure.
43. The Council confirms it completed an Equality Impact Assessment (EqIA), as part of its work to introduce the changes, and has provided me with a copy.
44. Under the ‘Disability’ section, the EqIA provides an estimate of the number of local residents with significant or moderate disabilities. It says, under the proposed changes, there will be “disabled bays open for use on all High Streets”; and, as a possible mitigatory measure, the Council could “maintain [the] same number of disabled bays on roads where existing bays are closed”.
45. I should note the EqIA covers the entire Council area, not simply Mr C’s town, and so its considerations must be read somewhat broadly. But I am satisfied the Council has ensured there are disabled bays available for access to the high street in the town, albeit not in the location Mr C considers they should be.
46. I do find the point about ‘maintaining the same number of bays’ somewhat ambiguous. It could be interpreted to mean the Council should aim to replace closed bays on a one-for-one basis, which it has not done here.
47. However, I note this is not presented as a commitment, but rather a possible way to mitigate a proposed closure of bays. And it does not appear such mitigation could work in this situation anyway, as it is the entire road which is closed, not simply the parking bays.
48. Taking this all together, I do not consider there is any evidence of fault by the Council here. It was entitled to decide to expand the road closure policy to cover all days, and it has explained how it caters for disabled parking provision with the closure in place. It has also shown how it has considered its equality duty in the process. I appreciate why Mr C is dissatisfied with the change, but as I have explained, this fact alone does not allow me to uphold his complaint.
49. Since raising his complaint, Mr C has contacted me to say the Council has now placed a new sign by the traffic barrier, which provides a mobile phone number for disabled drivers to call to obtain access to the closure area during the restricted times. Mr C considers this shows the Council could have provided this facility originally.
50. I acknowledge Mr C’s point. But there was a range of options open to the Council, when it was deciding how best to implement social distancing in the town. That it has now made a slight change to its approach does not mean its original decision was not one it could legitimately make.
51. Mr C also complains the Council did not undertake a consultation before imposing the changes. The Council has confirmed this. It says:

“The government issued guidance and emergency measures to facilitate social distancing in town/city centres on 23 May 2020. There was an expectation placed on local authorities by the government to make significant changes to road layouts to achieve social distancing. The government guidance recommended that consultation was undertaken with businesses but it was not mandatory. As part of the implementation process, the team considered the practicalities of undertaking a consultation exercise but felt that it was not possible to do this and to implement the measures within the timescale necessary and in readiness for the re-opening of shops.

“Local Member bulletins were issued, a letter outlining the measures was placed on the county council’s website and the restrictions were promoted by a traffic regulation notice using emergency powers. A survey/feedback process was implemented online so that residents and businesses could feed back their concerns or issues. The team have been receptive to changes and many of the sites have been altered or amended as a result of such feedback.”

52. The wording of the statutory guidance is that it “advises engagement” as being good practice. I agree, as the Council says, this does not make a prior consultation mandatory, although the guidance also advises local authorities seek input from several different groups – including local business and local disability groups – during the ‘design phase’. The Council has explained it had only a short period of time to implement changes, and having considered the practicality of a consultation, decided against it.
53. On balance I do not consider I can find fault here. There is a strong presumption that local authorities should follow statutory guidance, and only depart from it in exceptional circumstances. But I attach significant weight to the Council’s point about how quickly it needed to act – there was a little over three weeks between the issue of the guidance and the date when non-essential shops were to reopen on 15 June. I consider it has provided good reasons to depart from the guidance; and I note also the comment / feedback system the Council set up, which is good practice.
54. Finally, Mr C has also complained about a loss of trade to his business, emanating from the increased restrictions. He says this is because both disabled and non-disabled customers can no longer easily park nearby.
55. As the Council has explained, there is a general principle that businesses should not be able to claim compensation for a loss of trade caused by roadworks. This is because there are risks inherent in running a business, one of which is a loss of trade because of a legitimate decision by local or national authorities. The exception to this is where it can be shown the loss was caused, or worsened, because of negligence by the relevant authority.
56. And although the loss of trade Mr C claims has not arisen from roadworks, I share the Council’s view it is similar enough for the same principle to apply.
57. A claim for compensation, for a loss of trade arising from negligence by an authority, is again a matter which must be put to a court. I can make no findings on these questions.
58. The Ombudsman could potentially recommend a remedy, for any injustice arising from an administrative fault the way a road closure was implemented. This might be, for example, the loss of an opportunity to comment on the proposals.
59. But, as I have explained, in this case I have found no persuasive evidence of fault in the way the Council arranged and implemented the road closure. It follows, therefore, that I have no grounds to recommend a remedy for Mr C.

Conclusion

60. Mr C has explained the accessibility difficulties he has been caused by the road closure. I acknowledge this and do not, in any way, seek to dismiss the distress this will likely have caused him.
61. But the Council has a duty to balance competing priorities, especially with the particular challenges presented by the COVID-19 pandemic. It has shown it has considered its equality duties, and explained why it considers the alternative disabled parking arrangements adequate.
62. I recognise the alternative arrangements are less convenient for some users and businesses. But this is a decision the Council was entitled to make, and it is not for me to come to my own view of the suitability of the arrangements. In the absence of administrative fault, I am unable to criticise the Council’s decision.
63. The Council has also explained why it made the decision not to carry out a prior consultation before imposing the changes, and I am satisfied this decision was also properly made.
64. Again, absent any evidence of administrative fault, I cannot recommend Mr C receive a remedy related to a perceived loss of trade. And we could not recommend he received compensation for loss of trade anyway, as this is a matter for a court to decide.

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Final decision

65. I have completed my investigation with a finding of no fault.

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Investigator's decision on behalf of the Ombudsman