Summary: Mr X complained about the Council’s decision to remove a segregated cycle lane it installed. He said this resulted in there being no safe cycle route for Mr X to use. He considers the Council’s decision discriminates against him as a disabled person and fails to meet its public sector equality duty. The Ombudsman did not find fault in the Council’s decision.

The complaint

1. Mr X complained about the Council’s decision to remove a segregated cycle lane it installed. He said this resulted in there being no safe cycle route for Mr X to use.
2. Mr X considers the Council’s decision discriminates against him as a disabled person and means the Council is failing to meet its public sector equality duty.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
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. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Council’s Constitution (Part 4, paragraphs 1.36 and 1.37).
• Traffic Management Act 2004: network management in response to COVID-19 (published 9 May 2020).
• The Equality Act 2010.
7. 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

8. The Council’s constitution allows it to make urgent key decisions without consultation, providing the Chair of the Overview and Scrutiny Committee agrees.

Government guidance

9. The government issued transport guidance to local authorities in May 2020 (Traffic Management Act 2004: network management in response to COVID-19), before it eased COVID-19 lockdown measures.
10. It explained that, with public transport capacity reduced due to COVID-19, local authorities were expected to change road layouts to give more space to cyclists and pedestrians.
11. The government said changes should be made as quickly as possible, given the urgent need to change travel habits before it eased lockdown restrictions.
12. It said local authorities could introduce measures temporarily, and schemes like segregated cycle lanes will not need a Traffic Regulation Order to be in place.
13. The guidance said local authorities should monitor and evaluate temporary measures, with a view to making them permanent. They should consult emergency services and work with local businesses to ensure changes reflect their needs, particularly around access to business premises.
14. The guidance stressed the public sector equality duty still applies. Local authorities must consider the needs of disabled people and those with protected characteristics.

Equality duty

15. The Equality Act 2010 brought together all previous equality legislation. Section 149 of the Equality Act created a new public sector equality duty. This includes a duty for public sector bodies to eliminate discrimination and advance equality of opportunity when carrying out their functions.
16. Councils have a duty to make reasonable adjustments for people with disabilities. That duty is anticipatory. This means that, within reason, councils should consider in advance what disabled people with different impairments might reasonably need. Councils are not expected to anticipate the needs of every individual who may use its services.
17. The Equality and Human Rights Commission (EHRC) has issued guidance advising public sector bodies about their equality duties and how they can comply with them. The EHRC has the power to take enforcement action against public sector bodies, including councils, who fail to comply with their public sector equality duties. Its Compliance and Enforcement Policy says it may take enforcement action based on complaints from individuals.

What happened

18. In May 2020, the Council announced its Active Travel Plan - setting out measures to support the local economy and encourage more walking and cycling once the government eased COVID-19 lockdown restrictions.
19. The Council’s Active Travel Plan included a scheme to introduce segregated cycle lanes on its high street. Government travel restrictions meant public transport capacity was reduced. The Council therefore hoped the cycle lanes would support local businesses by making travel to the high street easier. Transport for London (TfL) funded the scheme.
20. The Council announced plans for the temporary cycle lane scheme on 19 June 2020. It published the story on its website and there was coverage in a local newspaper.
21. The Council planned to install the scheme in two phases. Phase one, scheduled to start in late September 2020, was to convert the nearside carriageway on both sides of the high street into a protected cycle space. This involved creating a marked cycle lane with protective wands along the length of the high street.
22. Phase two, planned for November 2020, was to upgrade four junctions along the high street to protect cyclists. During phase one, cyclists had to re-join the road or dismount and use pedestrian crossings at these junctions.
23. The Council held a virtual exhibition on 13 July to show the early designs of the scheme. Residents’ groups, businesses, and disability groups attended. The Council also consulted the emergency services and taxi drivers. The Council amended the design of the scheme following feedback from attendees and TfL.
24. The Council wrote to local businesses and residents’ groups on 14 September to tell them it planned to install the temporary cycle lanes.
25. As part of the Council’s consideration, officers carried out an equality impact assessment which found the cycle lanes had neutral impacts for groups with protected characteristics.
26. The Council started phase one of the installation work at the end of September and completed it by mid-October. The Council planned to start phase two of the scheme later in the year.
27. The Council met with local businesses and residents’ groups on 12 November to review the scheme. Attendees raised concerns about congestion, leading to poor air quality, longer journey times, and less parking and unloading space for businesses. They were also concerned about delays for emergency service vehicles and the impact less pick up and drop off space had on people with disabilities.
28. A local councillor wrote to attendees on 17 November to confirm he had asked the Council to pause phase two because of the concerns raised about phase one.
29. By 25 November, the Council had received over 1,000 emails about the cycle lanes. Of those who said they were local residents, 31% supported the cycle lanes and 69% opposed them.
30. Following this feedback, the Council produced a report outlining its plan to remove the cycle lanes.
31. The report states one reason the Council introduced the cycle lanes was to help high street businesses by making them easier to access by bike. However, many businesses reported the cycle lanes have not helped and have made the high street a less attractive place to trade. Many stakeholders who backed the cycle lanes have now asked the Council to remove them.
32. Local businesses asked the Council to remove the cycle lanes before Christmas. The Council therefore considered it did not have time to carry out consultation.
33. A local business forum told the Council three quarters of businesses now opposed the cycle lanes.
34. The Council considered it had three choices: remove the cycle lanes, leave them in place until early 2021, or remove the cycle lanes only in areas with most congestion.
35. The Council took an urgent key decision to remove the temporary cycle lanes on 2 December 2020. It published details of its decision online. It then removed the cycle lanes early that month.
36. Also in December, the Council received letters challenging its decision, including from TfL.
37. Mr X complained to the Council on 11 December by telephone and online. He said the Council was discriminating against him as a disabled person. He said by removing the cycle lane and not providing a safe alternative route, the Council was in breach of disability law.
38. The Council responded to Mr X’s complaint on 23 December. It provided him with copy of a report detailing the reasons for the Council’s decision.
39. It said it could not understand from Mr X’s complaint why his condition meant he was more adversely affected by the removal of the cycle lanes than others.
40. The Council said Mr X’s complaint was with the merits of its decision, so the complaints team cannot investigate. It suggested he contact the councillor in charge of planning who was responsible the decision.
41. Mr X asked the Council to consider his complaint at stage two of the complaints procedure. He said the Council’s lack of understanding about how his condition meant he was more adversely affected amounted to maladministration, and the Council should have taken suitable expert advice. He repeated his belief the Council discriminated against him and that its decision affected him more than a non-disabled person.
42. In its final response, the Council repeated that Mr X’s complaint was about a policy decision and the Council would not consider it under the complaints procedure. It said Mr X could complain to the Ombudsman if he remained unhappy.
43. Mr X brought his complaint to the Ombudsman on 4 January 2021. He told us his condition meant he cannot cycle safely unless there is a segregated route. He said the Council’s decision was discriminatory because it:
• Did not consider or consult disabled cyclists using the lanes.
• Withdrew the cycle lanes suddenly and without warning him.
• Carried out consultation which was lacking and defective.
• Has not taken account of the impact on air quality and how this affects his condition.
• Failed to consider the impact removing the cycle lanes would have on someone with his condition.
• Failed to consider the safety of cyclists.
• Failed to consider its public sector equality duties.
44. In January 2021, the Council announced its leadership team would reconsider the cycle lanes again and make a fresh decision. This was because the Council received many more representations, both for and against, since it removed the cycle lanes.
45. Of the local businesses and residents’ groups who contacted the Council, 19 supported the cycle lanes and 28 opposed them.
46. The Ambulance and Fire Services both raised concerns about the scheme and said their vehicles would not use the cycle lanes. Both had concerns about response times and journey times. Their responses at that stage were anecdotal, based on officer opinion and experience rather than journey data.
47. Officers considered, on balance, the cycle lanes will have a neutral impact on protected groups. They considered a key negative of the cycle lanes was the impact on the elderly and disabled – because the scheme reduced the number of safe drop off and pick up points.
48. The Council’s leadership team met on 17 March 2021 and decided not to reinstate the cycle lanes. It noted pressures from the government to respond to the challenges of travelling by public transport at the onset of the pandemic meant the Council could not consult as normal. It also said it always intended the cycle lanes to be temporary. It would need full consultation if there was demand to keep them.
49. The Council’s leadership team decided to develop plans to research transport patterns post COVID-19, in partnership with local residents.

Response to my enquiries

50. The Council told me it introduced cycle lanes because of government directions about higher levels of cycling, and to support local business recovery.
51. It did not carry out its usual consultation because of time pressures created by the government guidance. However, it did engage with groups representing local people and businesses.
52. The Council’s decision to remove the cycle lanes in December 2020 was an urgent key decision taken in line with its constitution. It did not conduct consultation, as it was necessary to decide quickly. Consultation would have taken too long to address the concerns about traffic congestion pre-Christmas.
53. The Council removed the cycle lanes because of concerns from local businesses and residents, as well as a local MP, that vehicle traffic would increase when lockdown ended. This would cause unacceptable congestion on the high street. That in turn would hamper businesses in the run up to Christmas.
54. As part of its decision, the Council considered the equality implications of both having and not having the cycle lanes and had previously produced an equality impact assessment.

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Analysis

55. Government guidance required the Council to implement post COVID-19 lockdown travel plans urgently. The Council did not need a Traffic Regulation Order for a segregated cycle lane of this type, and therefore did not need to carry out formal consultation.
56. While the Council did not carry out formal consultation, it did publicise its plans and engage with relevant local stakeholders. The evidence seen shows the Council took account of relevant public opinion before implementing the scheme.
57. The government envisaged temporary schemes would become permanent. That did not happen here. Due to feedback about the negative impact of the scheme, the Council decided to remove the cycle lanes. To help local businesses, the Council wanted to remove the cycle lanes in a short time, before Christmas.
58. That meant it could not consult the public. However, the Council engaged with stakeholders and made an informed decision. Its Constitution allows the Council to make urgent key decisions without consultation. I therefore do not consider there was fault in the Council’s decision to remove the cycle lanes.
59. It is not the Ombudsman’s role to interpret government guidance or say whether councils should make temporary transport schemes permanent. If a council considers a scheme is not working for its residents, and has considered all relevant factors, it is entitled to withdraw it. While the government aimed to have more active travel, it also wanted to support local businesses. That is a balancing act and is for councils to decide.
60. I am mindful the COVID-19 pandemic brought much uncertainty and change which the Council had to consider and try to predict. There was significant public interest in the scheme, with many expressing views in favour or opposed to it. Whichever decision the Council took, it was likely to receive criticism.
61. The evidence seen shows the Council did not simply make an arbitrary decision to remove the cycle lanes. It considered feedback, and it produced reports which show it weighed up opposing views and the implications of its decision. It also provided a clear rationale for the decision it took. While Mr X and others may disagree, the Council wanted to prioritise easing congestion to promote trade in the run up to Christmas and help businesses badly affected by the pandemic.
62. I appreciate Mr X’s concerns about the way he was personally affected by the Council’s decision to remove the cycle lanes. However, I have not seen evidence there was fault in the decision.
63. The cycle lanes affected thousands of residents and road users, as well as local businesses, with a range of views and needs. That meant the Council’s consideration had to be broad, weighing up competing interests.
64. Councils must be proactive in advancing equality of opportunity for people with protected characterises. However, we do not expect councils to anticipate every individual need. Councils will often carry out an equality impact assessment to consider how a policy or decision may affect groups with protected characteristics. That is what the Council did in this case. I am therefore satisfied the Council considered the impact on disabled users of the scheme.
65. It is not the role of the Ombudsman to assess whether council policies or decisions are unlawful or discriminatory. These are matters for the Court.

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Final decision

66. I have completed my investigation. The Ombudsman did not find fault in the Council’s decision.

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Investigator's decision on behalf of the Ombudsman