Durham County Council (19 017 368)

Category : Transport and highways > Highway repair and maintenance

Decision : Upheld

Decision date : 28 Oct 2020

The Ombudsman's final decision:

Summary: Mr D complains the Council has not maintained the highway/ footpaths and not installed sufficient dropped kerbs. He also says the Council should have completed an Equality Impact Assessment for an event. The Ombudsman has upheld the complaint because there is some fault by the Council, it delayed contacting Mr D and incorrectly referenced a site in its complaint response. He has completed the investigation because those faults did not cause an outstanding injustice to Mr D.

The complaint

  1. The complainant (whom I refer to as Mr D) says the Council has not maintained highways/ footpaths he uses on his route to work, in particular that it has not installed enough dropped kerbs or addressed the gradient on a bridge and its access route. Mr D also says the Council should have completed an Equality Impact Assessment (EIA) for the Lumiere event in 2019 and failed to provide suitable alternative parking for him.
  2. In addition, Mr D refers to parking issues and wants financial redress for injuries and damage to his possessions. He also states the Council is discriminatory and has acted unlawfully.

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What I have investigated

  1. I have looked at how the Council dealt with Mr D’s requests for dropped kerbs, route maintenance and the gradient issues in 2019 and 2020. I have also considered the issues raised by Mr D about the Lumiere event in 2019.
  2. I have not looked at the rest of the complaint for the reasons set out below.

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The Ombudsman’s role and powers

  1. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
  2. 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)
  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. I have carefully considered the information supplied by Mr D. I asked the Council questions and examined its response along with its policies and procedures.
  2. I shared my draft decision with both parties and considered their comments.

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What I found

What happened

  1. In May 2019 Mr D contacted the Council about a lack of dropped kerbs next to some disabled parking bays. At the start of June, the Council noted the parking bays were suspended for development work. That meant there was no current benefit to installing a dropped kerb because the site was not in use.
  2. On 9 September Mr D called the Council, he was informed about the decision on the dropped kerbs. He said there were accessibility issues with another site. Four days later he also asked the Council to look at the lack of dropped kerbs on his route to work. On 23 September Mr D complained the Council had not addressed his concerns. On 25 September, the Council asked Mr D for more details of the locations and offered to meet him at the site to discuss further. It also explained about the priority assessment process for dropped kerbs. Mr D supplied further details on 25 September. At the start of October, the Council asked the Traffic Assets Section to consider each location and whether there was any budget available for dropped kerb installation that financial year. The Council looked at five sites. It primarily carried out a desktop investigation. It found three of the sites had development schemes in place which meant additional dropped kerbs would be installed as part of the works. One site did require dropped kerbs but was a low to medium priority because of the low number of people using the location. It was added to the Disabled Access Ramp register (DAR register). At the fifth site Mr D had said the dropped kerb was misaligned. The Council visited and found the kerb had been designed to facilitate a public utilities site. The area was due to be developed and this would include the installation of new dropped kerbs.
  3. On 8 October, the Council told Mr D that locations had been added to the DAR register. There were currently 150 dropped kerbs on the register and there was not funding available to do the works that financial year. The Council hoped it would be able to install in the next year. On 9 and 16 October the Council sent letters to Mr D explaining it needed longer to respond to his complaint.
  4. On 23 October Mr D complained to the Council about the suspension of some parking bays and footpath closures for the forthcoming Lumiere event.
  5. The Council sent its initial response (called a stage one complaint) about Mr D’s September complaint on 4 November. The Council explained it had a limited budget and so no dropped kerbs would be installed in that financial year. It referred to the gradient on a bridge but gave the wrong bridge name. Mr D replied that day pointing out the name error. He said the Council was not taking matters seriously. The Council also replied to the Lumiere event complaint at the start of November. It said some parking bays had to be suspended but set out alternative parking availability including accessible bays. Mr D then told the Council he could not access the token machines used at private car parks and asked to park all day at a Leisure Centre. The Council told Mr D that it had visited a car park which did not use token machines and was fully accessible. It gave details including a contact number for staff who would assist him. The Council also decided it could not allow a reserved all-day parking space at a disabled bay at the Leisure Centre. That would potentially disadvantage other service users who only had a three-hour slot. The Council additionally told Mr D that no EIA had been done for the Lumiere event. The Council had worked with the organiser and taken into account equality considerations and gave a link to information about the provisions made for the event.
  6. On 19 November, the Council wrote to Mr D. It apologised for its previous error and had been out to the bridge and inspected it and the access approach. The gradient was fully compliant with guidance and there were no defects found that required action. The same day Mr D asked the Council to escalate his complaint (called a stage two complaint).
  7. The Council sent a detailed stage two complaint response to Mr D on 10 January 2020. That included an independent investigator report. The Council did not uphold the complaint. It set out its duties and the priority system for dropped kerbs. It found Officers had acted correctly. In respect of the EIA it said there was no statutory duty for the Council to complete an EIA for a decision on suspending parking bays. The Council had taken advice from the Safety Advisory Group and Police along with crowd safety specialists. It had provided reasonable adjustments by advising service users about the closures and giving details of alternative parking provision on its website.

What should have happened

  1. The Council has a duty, under the Highways Act 1980, to inspect and maintain the highway. It carries out scheduled cyclic inspections of highways and footpaths to identify any safety issues and defects.
  2. When a service user requests the Council install a dropped kerb (on a public footpath, not for personal use) the Council’s Traffic Assets Section will consider the request. An Officer will carry out a desk top investigation or a site visit to see if a dropped kerb can be installed. They must gauge the likely number of “mobility impaired” people who will benefit from the installation. It gives priority to dropped kerbs in locations that will benefit the largest number of people. It awards each request a priority level: high for a site that will benefit a high number of people: medium for a moderate number of people accessing the site and low for a small number of people who would benefit.
  3. Where a dropped kerb request is considered high priority, the Council will try to install it that financial year if there is funding. Medium and low priority requests are placed on the DAR register to be considered when funding is available.
  4. The Equality Act 2010 includes a public sector equality duty. It does not say a council must complete an equality analysis for all decision making but they should make proportionate reasonable adjustments for service users with protected characteristics (including disabled persons). The Council has an EIA process used primarily for changes to policy or new policies which would require high level permission (by Cabinet or delegated decision). An EIA records the equality analysis process. It sets out whether proportionate reasonable adjustments are required.
  5. Where the Council is making temporary changes to service provision it can consider equality impact without recourse to an EIA. Officers must still look at whether proportionate reasonable adjustments are required. In respect of parking provision for large scale public events the Council will usually consult with its Safety Advisory Group and the Police to determine what parking restrictions are needed and what reasonable adjustments should be made.

Was there fault by the Council

  1. There are two faults by the Council. First, it delayed notifying Mr D about the outcome of his initial contact in May 2019. It should have explained why no action would be taken once a decision had been made in June. Instead Mr D was notified in September when he contacted the Council. The second fault is the Council referred to the wrong bridge in its stage one complaint response. However, I note the Council then promptly visited the correct site and assessed whether any works were required. It also contacted Mr D and explained its actions.
  2. I have not found any other fault in this case.
  3. The evidence shows me the Council has adhered to its policies and procedures when assessing Mr D’s service requests for regular parking provision. It has either carried out a desktop investigation or made a site visit for each location that Mr D reported. It assessed whether works were needed and if a dropped kerb was required. Its findings were explained to Mr D along with the priority system used to determine which works were high priority.
  4. In respect of the Lumiere event I see no fault by the Council. It was not obliged to complete an EIA and has correctly explained this to Mr D. It fulfilled its obligation to take account of the impact on service users when suspending parking bays and set out alternative parking provision on its website. In addition, the Council considered Mr D’s request for parking at a Leisure Centre. Mr D says the Leisure Centre was closed at the time, I have checked this with the Council, and it has confirmed the Centre was open to customers with only one hall closed. The Council also identified parking that would not have accessibility issues for Mr D. In doing so I am satisfied the Council acted reasonably.
  5. I appreciate that Mr D strongly disagrees with the Council’s decisions. However, the Ombudsman will not question the merits of such decisions where there is no evidence of fault in how they were reached: that applies to this case.

Did the fault cause an injustice

  1. I do not see there is an outstanding injustice to Mr D. The Council has explained its decision making in respect of the May 2019 request. It apologised for its error with the bridge name and carried out an inspection in line with procedures.

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Final decision

  1. I have upheld the complaint because of the two errors identified and completed the investigation.

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Parts of the complaint that I did not investigate

  1. I am not considering Mr D’s complaint about parking issues. These have already been investigated by the Ombudsman.
  2. I am not looking at his complaints about financial compensation because he can make a claim against the Council and pursue this to court.
  3. The Ombudsman cannot consider whether the Council is acting unlawfully or is discriminatory, those are matters for the courts to determine.

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Investigator's decision on behalf of the Ombudsman

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