The Ombudsman's final decision:
Summary: Mr E complained on behalf of a residents’ group about the introduction of a traffic barrier along the road where they live. We found some fault in the Council’s consideration of objections to the barrier provided by one of the emergency services. However, we did not consider this caused injustice and we did not uphold other complaints about consultation and potential impacts of the scheme. Consequently, we completed our investigation.
- I have called the complainant ‘Mr E’. He represents a local residents’ group who complain at the Council’s introduction of a barrier which has changed the layout of a highway junction where two roads meet. The residents’ group has members who live on both roads (including Mr E) as well as other roads in the vicinity. Mr E complains the Council installed this barrier:
- following inadequate consultation; not taking account of opposition from residents and without proper consultation with Ward Councillors or the local Area Forum; not considering an alternative scheme; for example, one using Automatic Number Plate Recognition (ANPR) and following undue influence by a cycling lobby group.
- without taking account of objections or representations from the emergency services or considering the impact on road safety; the changes to the junction resulted in the removal of two pedestrian islands used by elderly and disabled pedestrians and those with young children.
- Mr E says the scheme has caused more traffic to divert on to neighbouring roads, including the one he lives on. He says this makes it less safe and, because it is a narrow road, has resulted in minor road traffic collisions and difficulties with waste collection. Mr E also says the scheme creates more hazards for elderly or disabled pedestrians and may create delays for emergency vehicle access.
The Ombudsman’s role and powers
- 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)
- We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We may decide not to continue with an investigation if we decide any fault has not caused injustice to the person who complained, any injustice is not significant enough to justify our involvement or further investigation would not lead to a different outcome (Local Government Act 1974, section 24A(6))
- 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”.
- 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)
How I considered this complaint
- Before issuing this decision statement I considered:
- Mr E’s written complaint to the Ombudsman and any supporting information he provided, including that gathered in telephone conversations;
- correspondence between Mr E and the Council pre-dating our decision to investigate his complaint;
- information provided by the Council in response to our enquiries and that published on its website;
- relevant national and local policy and guidance as set out below.
- I also gave Mr E and the Council a chance to comment on a draft of this decision statement, where I set out proposed findings. I took account of any comments made in response before issuing this final decision.
What I found
- In May 2020, the Government issued statutory guidance to local authorities on making changes to road layouts and usage, in response to the COVID-19 pandemic.
- The introduction to the guidance noted an increase in the use of cycling during the pandemic. It said this was “a once in a lifetime opportunity” to change how people made short journeys in towns and cities. The Government suggested a range of measures councils could consider to reduce motorised traffic and encourage pedestrians and cycling. This could include “identifying and bringing forward schemes already planned”. It said councils should aim for measures to take effect “within weeks”.
- Government guidance said measures could be introduced on a temporary basis, including through the use of Experimental Traffic Regulation Orders (ETROs). These can be used to trial schemes which can later be made permanent. A council must have consultation running alongside implementation for a period of six months.
- The statutory guidance said: “The public sector equality duty (PSED) still applies, and in making any changes to their road networks, authorities must consider the needs of disabled people and those with other protected characteristics. Accessibility requirements apply to temporary measures as they do to permanent ones.”
- In November 2020, the Government expanded the statutory guidance to also include a passage on ‘engagement and consultation’. This said local authorities should consider the impact of changes on “all road users, taking into account the need to provide for increased walking and cycling”. It said: “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”.
- The updated guidance also emphasised further the need for temporary and permanent road traffic schemes to comply with the PSED.
The Equality Act
- The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
- Organisations carrying out public functions cannot discriminate on any of the nine protected characteristics listed in the Equality Act 2010 and must have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. The ‘protected characteristics' referred to in the Act include age and disability.
- The PSED requires all local authorities 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;
- foster good relations between people who share a protected characteristic and those who do not.
- The broad purpose of the PSED is therefore to consider equality and good relations in 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.
- In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction, called “Principles of Good Administrative Practice”. We issued an addendum in response to the COVID-19 pandemic; “Good Administrative Practice during the response to Covid-19”. This said we expected similar standards from councils, even during crisis working. The following points are relevant in this case:
- the basis on which decisions are made and resources allocated, even under emergency conditions, should be open and transparent;
- decision reasons should be clear, evidence based and where necessary explained in the particular context and circumstances of that decision.
- In response to the COVID-19 pandemic the Council introduced its ‘Streetscape’ programme. On its website the Council said the programme took account of the statutory guidance set out above and guidance issued by the London Mayor. It said its aims were to:
- enable social distancing for those using shops and services, and those travelling around the borough on foot or by bike;
- create safer and more attractive spaces for walking and cycling (known as ‘active travel’ modes);
- reduce congestion and air pollution from vehicular traffic given a decline in public transport use;
- reduce through traffic on residential roads, to prevent ‘rat-running’.
- The Council set out how measures falling under the programme would be identified and implemented as follows:
- First, officers would identify schemes.
- Second, officers would review proposals for compliance with statutory guidance, technical feasibility, potential impacts (including consideration of the PSED) and cost.
- Third, any schemes found viable would be discussed with Lead Members for Transport, Highways and Climate Emergency/Air Quality and a decision made as to whether to proceed to trial.
- Fourth, there would be ‘engagement’ with local ward councillors.
- Followed by fifth, consultation with statutory consultees such as the emergency services.
- After that, the sixth step would be a decision to progress to trial implementation, usually through an ERTO. The Council would publish decisions with reasons. The Council said using ERTOs allowed it “to implement the scheme quickly and simultaneously consult those impacted by it. Feedback received through this consultation is then considered at the point at which the council determines whether or not to make the scheme, or any aspects of it, permanent”.
- The Council also set out how it would announce the measures and put up advance warning signs; implementation would follow. It also set out in some detail how it would review such schemes. I have not listed the detail of the review process in this statement as the complaint is concerned with the introduction of the scheme and not its review.
- The Council constitution also refers to the role of Area Forums in decision making around highway schemes. There are five area forums for different geographic locations within the Borough. The constitution says, “they are responsible for monitoring local service provision including planning and highway related matters”. The Council says that when introducing the Streetscape policy described above, the requirement to ‘work at pace’ meant “the normal process of decision making for implementing changes to the highway needed to be amended”. So, the Council consulted direct with Ward Councillors but not the Area Forums which they attend. I note that because of the pandemic all meetings of the Area Forum covering the area where Mr E lives were cancelled after February 2020 and did not resume until November 2020.
- Below I set out the background to Mr E’s complaint and some of the key correspondence and actions taken by him or the Council. This section is not intended to be exhaustive. It concentrates on what I consider are the most important facts and events. Where I refer to Mr E in the singular this can be read as also applying to the other members of the residents’ group for which he acts as a representative.
- Mr E lives on a residential road (’Road A’) in the Council’s area that runs in an approximate north-east to south-west direction. Along its course the road is crossed by another road (‘Road B’) running approximately north-west to south-east. Road B is wider than Road A and, at the beginning of the events covered by this complaint, joined two larger roads in the neighbourhood and carried more traffic. Near where Roads A and B crossed, the Council had installed two pedestrian islands for crossing Road B.
- In 2019 the Council began consultations on how it could create a ‘low traffic neighbourhood’ (LTN) in that part of the Borough where both roads are located. The Council published the results of that consultation in May 2020, around the same time the Government introduced its statutory guidance in response to the COVID-19 pandemic. The report identified Road B as one of the top ten ‘hotspots’ in the area with concerns about “speeding traffic, congestion and air pollution creating dangerous conditions for people cycling and walking”. I note before this publication, officers had also had email discussions about traffic on Road B, which also highlighted these concerns. Both those emails and the report contain details such as traffic numbers, average speeds and so on, which illustrate the concerns.
- The paper proposed putting a diagonal barrier across Road B at its junction with Road A. Through traffic travelling along Road B would therefore be forced to turn left on to Road A and head back approximately in the direction it came from. The Council paper set out the intent behind the barrier would be to stop Road B being used as a “cut through to more major roads”.
- In June 2020 the Council wrote to residents living in the proposed LTN, including those living on Road A. The letter signposted them to the May 2020 paper above and advised of the Council’s intent to introduce various highway changes. It did not mention specific schemes, such as the proposed road barrier.
- This was around the same time the Residents’ Group formed and Mr E first wrote to the Council on its behalf expressing concerns at the proposals. He said residents thought the Council was using ERTOs to push through controversial changes. He feared the scheme would simply push traffic on to neighbouring roads (including Road A) and so would not reduce traffic. He queried why the Council was not considering an ANPR scheme instead to prevent rat-running. At the end of the month Mr E delivered a petition signed by around 180 residents expressing similar concerns. By now the Council had published more details of the proposed barrier design and Mr E also expressed concerns that larger vehicles would struggle to turn.
- The Council treated Mr E’s concerns as a complaint and wrote to him in early July 2020. Included in the reply, it said:
- The intent behind the scheme was “to prevent through traffic” and encourage a “mode shift” away from use of the car.
- It recognised bringing forward the LTN proposals more quickly than it had planned because of the COVID-19 pandemic. It said the Government had placed an expectation it act quickly. All schemes were experimental and the Council would consult alongside their implementation. It explained how consultation on the barrier scheme would operate.
- It said the Council had met with Ward Councillors and officers were discussing further objections to the proposed barrier and seeing what changes might be made.
- In mid-July the Council then sent a further letter to residents living in the proposed LTN. This letter referred directly to the proposed barrier scheme. It said the design for the scheme was ongoing. Shortly after this Mr E noted the Council proposed removing the pedestrian islands to allow for vehicle turning at the barrier. He complained this would disadvantage pedestrians and make crossing Road B more dangerous.
- Before the end of the month a consultant commissioned by the Council had completed a road safety audit. This focused on the risks associated with motorised traffic approaching the proposed barrier. It gave advice on matters such as road markings and signage to reduce the possibility of accidents. It did not mention the removal of the pedestrian islands.
- In August the Council wrote to emergency services advising of the proposed barrier. The London Ambulance Service (LAS) commented that it could not support schemes that created ‘hard barriers’ because ambulance crews from across the city could be dispatched to call outs and may not have local knowledge of such barriers. Earlier the police had also expressed in general terms a concern about hard barriers saying they could lead to delays in response times. There is no record the London Fire Brigade commented on the proposal. Internal emails show officers were aware of the LAS and police comments but do not show how they considered them.
- In early September 2020 the Council briefed Ward Councillors that it intended to proceed with the scheme and sent them a draft copy of a decision notice to be published online at the end of the month (see below).
- During August and September Mr E, on behalf of the Residents’ Group, continued to challenge the Council on the proposed scheme. The Group threatened a legal challenge saying the Council was intending to make the scheme permanent. It also said the scheme ran contrary to Government advice as it would not improve traffic conditions for pedestrians or cyclists. Mr E said the removal of the pedestrian islands would create a more dangerous environment for pedestrians.
- At the end of September 2020, the Council published a decision explaining why it had introduced an ERTO. The decision noted the Council had:
- received the petition opposed to the barrier;
- engaged in discussion with the ‘lead petitioner’;
- decided to treat the petition as comments on the ERTO and it would consider the content alongside other representations in due course.
- The decision notice set out the Council’s reasons for introducing the layout changes. It drew attention to the Government guidance introduced further to the COVID-19 pandemic; guidance from the Mayor’s office and its Streetscape policy. The Council cited its consultation on the proposed LTN in 2019 and said this showed residents wanted better road safety and reduced speed on roads. It said it was “bringing forward these proposals as part of urgent response to Covid pandemic”.
- The Council explained that it believed the barrier would cut traffic using Road B. It did not expect the barrier to interfere with waste collections. It said to accommodate the barrier it had removed the pedestrian islands but considered the scheme would reduce the need for these. However, it would consider reinstalling the islands following a review of the scheme. The decision referred in general terms to the PSED. It said the impact of the schemes on those with protected characteristics would be considered as part of the ongoing consultation. The decision did not comment on the consultation with the emergency services.
- In October 2020 the Council installed the barrier. After this time Mr E and the Council engaged in further correspondence. Mr E has raised those concerns I summarised in paragraph 1 and obtained information from the Council through making information requests. I also note that in his correspondence Mr E has sent the Council video clips showing the difficulty a fire engine had manoeuvring between parked vehicles on Road A; a waste collection vehicle performing a difficult reversing manoeuvre and of a minor road traffic collision caused by a car traveling down Road A clipping a parked car.
- In its responses the Council continued to defend its decision-making. The Council also said that it does not consider the video clips provided by Mr E show the barrier to be a cause of traffic problems along Road A.
- During my investigation Mr E has raised his concern that two senior Councillors with responsibility for signing off decisions under the Streetscape initiative are members of a pro-cycling lobby group. In addition, Mr E has a concern that a third senior Councillor put a statement in the public domain suggesting he is also a member but failed to declare this. Mr E has engaged in ongoing correspondence with the Council’s Monitoring Officer about these matters.
- In reply to a Freedom of Information request Mr E has also obtained emails between the cycling lobby group and senior officers of the Council. These show they have sometimes been on friendly terms and the lobbying group has been generally supportive of the Streetscape schemes. I noted that one email from a senior officer to a member of the lobby group, sent in early June 2020, referred to the barrier scheme and commented that a drawing was “spot on”. That officer has now left the Council but the Council understands they were commenting on a proposed blog post. Mr E considers these emails also show undue influence being exercised by the cycling lobby group on the Council.
- I have considered the matters raised in paragraphs 41 and 42 as part of my investigation.
- As part of my enquiries, I asked the Council for more information about how it had sought to discharge the PSED when introducing this scheme. The Council referred me to two documents. The first is an Equality Impact Assessment for all measures being introduced as part of the LTN. This is undated but refers to all measures in the future tense, implying it was authored before June 2020. It says the Council will monitor the impact of different component parts of the scheme as part of the process of consultation required when implementing an ERTO. The assessment discusses the impact on disabled vehicle users of changes to road layouts and that some may need to change routes. It does not specifically mention the barrier between Roads A and B at any point.
- The second document is also undated and called a ‘supporting information document’. This document notes that to introduce the barrier between Roads A and B the Council removed pedestrian islands. It says that “due to anticipated reductions in traffic volumes” this is not expected to have “significant impact”. But “to alleviate local concerns” the Council has installed temporary pedestrian traffic lights on Road B and will monitor their use as well as traffic numbers. The document notes that the Council hopes traffic volume and speed will be reduced because of the barrier, meaning there is no need to retain the traffic lights in the longer term.
Complaint about consultation and decision making
- I have considered each part of Mr E’s complaint in turn, beginning with those concerns about how the Council consulted on the barrier scheme and decided to proceed with its introduction under an ERTO.
- I find the Council brought forward the barrier scheme as one of several proposals designed to create a LTN where Mr E lives. I find the proposals were introduced more quickly than envisaged in 2019 when consultation began on the LTN. I appreciate therefore why Mr E may feel the introduction of the barrier scheme was rushed without the extent of further consultation residents might have expected. But I find the Government guidance actively encouraged councils to bring forward plans they may have been considering for changing road use habits, such as the introduction of LTNs. It also encouraged councils to act quickly.
- Further, in its initial advice on introducing schemes in the wake of the pandemic, the Government did not require councils to undertake extensive consultation. It only offered any advice on consultation from November 2020. It also actively encouraged the use of ERTOs. By their nature, ERTOs do not require extensive consultation before implementation. Instead, the emphasis is on consultation following the introduction of an ERTO, which should begin straight away and last for six months.
- I consider the Council was therefore acting consistently with Government guidance when it brought forward this scheme and this inevitably limited the scope for consultation.
- It would also not be fair to characterise the scheme as not following any engagement with the local community. First, the Council can point to the consultation it carried out in 2019 and associated research which showed local concern for traffic numbers and speeds on Road B.
- Second, the Council also carried out further ‘consultation’ before the introduction of the ERTO, although I accept this was more informative in nature than part of a process designed to weigh up detailed support or opposition to the barrier. In particular, I note over three months elapsed between the Council publishing plans for the proposed barrier and its introduction. In this time it sent two letters to residents, one general in nature and one specific, which raised awareness of the scheme. I find this form of consultation consistent with the introduction of an ERTO and that guidance the Government subsequently went on to issue in November 2020.
- I also find the Council sought to engage with Mr E’s concerns on behalf of the Residents’ Group and provided explanation for its thinking. There is also evidence it was flexible around some of the details of the scheme. In particular, it introduced temporary pedestrian traffic lights in response to concerns about the removal of pedestrian islands on Road B. This shows it listened to local residents.
- I also find the Council consulted adequately with Ward Councillors, although this was again more informative in nature. I do not find that prior to the pandemic the Area Forum would have had a clear decision-making responsibility for an ERTO although it would have been consulted. But as the Area Forum could not meet I consider it was reasonable for the Council to proceed with the scheme under the Streetscape procedure.
- I also do not find the Council was under any obligation to consider the alternative of an ANPR scheme. I stress again Government guidance put emphasis on councils acting quickly and barrier schemes of this type, which could be erected quickly using moveable barriers, would appear consistent with that. The Council could consider whether an alternative scheme moving forward would be preferable as part of the consultation exercise on the ERTO.
- I also found no evidence the cycling group exerted any undue influence over this barrier scheme. It is clear they were aware of the plans for the barrier but not before the Council published its first proposal for it in May 2020. There is no evidence the cycling group did more than express in general terms support for the scheme as I might expect. The Council could not prevent one of its members drawing up an informal plan of the scheme and it was not unreasonable for its officer to comment if he thought that a fair representation.
- I take no view on the specific allegations around three councillors as this matter noting that until very recently that remained under investigation by the Council. It is open to Mr E to make a separate complaint to the Ombudsman if he does not consider the Council has properly considered his allegations about their conduct or followed the correct process in considering those concerns.
- For all the reasons I have set out above I do not find fault in the consultation undertaken by the Council in its introduction of the scheme.
Complaints about safety
- I have noted the emergency service representations made on the barrier scheme. I find no evidence the fire service commented and while the police service commented, it did not object, phrasing its comments as ‘concerns’. The only formal objections to the scheme therefore came from the LAS.
- Any objections made by the emergency services to a ERTO do not prevent the Council moving ahead with a scheme. However, we expect councils should give consideration to any objections received. In this case I can find no evidence of how the Council weighed the objections of the LAS in its decision. There is no reference to those objections in its September 2020 decision notice which is otherwise detailed. I also found no evidence of any discussion of the objections in internal emails disclosed by the Council.
- I consider this failure to address the LAS objections justifies a finding of fault. However, I do not find this fault will have caused injustice. Because various factors mean consideration of the objections by the Council are unlikely to have led it not to proceed with the scheme.
- First, I reiterate the law only requires consultation with emergency services. The fact an objection has been received does not prevent the Council from implementing the ERTO. Clearly the Council advanced reasons for wanting to proceed with the scheme and it cannot be assumed that an objection from the emergency services should outweigh those reasons.
- Second, I note the LAS objections were generic in nature. They did not comment on any factors specific to Roads A and B. While ambulance crews and others would be sometimes required to take a different route to addresses on these roads, the Council provided signage warning of the closures and I noted during my investigation that online maps had been updated to show the changed road layout. So, I do not think the LAS objections were incapable of being overcome.
- Third, this leads me to note the tension that exists between a general objection to hard barriers and Government guidance that actively encourages such barriers in a variety of situations. As I have noted the Government placed a clear expectation on councils to introduce measures to try and change vehicle habits, prioritising cyclists and pedestrians; including through the use of such barriers. It gave no guidance to councils that they should pull back from such schemes in the wake of emergency service objections.
- Fourth and finally, I stress again the experimental nature of ERTOs. It is part of their design that impacts be monitored and further consultation undertaken immediately after their introduction. It is reasonable the concerns of the emergency services can also be considered as part of any review of the impact of such schemes.
- I also have some concerns about how the Council approached the discharge of the PSED in introducing the barrier scheme. I find there are some deficiencies in the documents it has provided when I asked it to show how it took account of the PSED. The EQIA for the LTN scheme is general in nature and does not have anything to say about this specific scheme. While the supporting information document is specific to the scheme it is undated and therefore does not show what consideration officers gave to the barrier before its introduction.
- However, these documents do still show the Council had a general awareness of the need to consider the PSED. It is also reasonable for the Council to point out that because of the nature of monitoring and consultation on the impact of an ERTO that it can consider any impact on those with protected characteristics as part of that. The Council has an expectation the net effect of the barrier will be to make for safer road conditions on both Roads A and B, including for those with protected characteristics because of anticipated reduced traffic numbers and speed. I also note the Council clearly listened to concerns about the potential difficulties for those with protected characteristics caused by removing the pedestrian islands. It provided a pedestrian traffic light crossing as a replacement during the period of consultation on the ERTO.
- The combination of factors listed in paragraph 66 lead me to conclude the concerns I have set out in paragraph 65 do not justify a finding of fault.
- I have also noted and understand Mr E’s concerns that the scheme overall has had a negative effect on Road A. It is clearly narrower than Road B and traffic from Road B is forced on to it because of the barrier. The film clips taken by Mr E illustrate the problems larger vehicles can experience when travelling along Road A and this may be exacerbated when negotiating the turn required by the barrier.
- It would have been preferable had the Council given more consideration to the impact on Road A in its decision notice. But I do not think this is enough to find fault. Because the Council has advanced clear reasons for why it believes the scheme will provide benefit overall to the residents of Road A and Road B, because it considers the barrier should reduce traffic numbers. I could not say the Council was at fault therefore for proceeding with the ERTO, even while I accept it will have had some negative impacts on the residents of Road A, especially in the short term when drivers used to using Road B may not have been aware of the layout change. But there is a clear expectation the Council should monitor those impacts and listen to residents when reviewing the effectiveness of the measure. This would also apply to any concerns the scheme has had a negative ‘knock-on’ effect on other roads, where traffic may have been displaced on to those roads because of this scheme.
- In summary therefore, for reasons set out above I find some fault by the Council in its introduction of the ERTO at the centre of this complaint. However, I do not find this caused injustice. So, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman