Decision : Upheld
Decision date : 09 Feb 2021
The Ombudsman's final decision:
Summary: Ms D complains the Council’s consultation process for parking restrictions in her street was flawed. The Ombudsman has found evidence of fault by the Council. He has upheld the complaint and completed the investigation because the Council agrees to hold a fresh consultation.
- The complainant (whom I refer to as Ms D) says the Council’s consultation process for parking restrictions in her street was flawed.
What I have investigated
- I have looked at events from 2019 onwards. I explain below why I am not looking at what happened in 2018.
The Ombudsman’s role and powers
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- 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)
- 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)
- 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
- I have spoken to Ms D and considered the information she provided. I asked the Council questions and considered its response.
- I shared my draft decision with both parties.
What I found
- In 2018 Ms D and other residents complained to the Council about parking issues in their street caused by a nearby school. The Council carried out a consultation into parking restrictions. Feedback was split, in favour and against, so restrictions were not taken forward.
Events I have investigated
- In January 2019 Ms D and other residents of the street met the Council to discuss parking issues. In February, the Council corresponded with Ms D about options for restricting parking.
- On 5 April Ms D complained to the Council that it was taking too long to progress the case and there had been no action since the January meeting. On 12 April, the Council wrote to the residents of the street. This was the informal consultation letter. It set out different proposals including yellow lines on the street (covering the area outside Ms D’s home) or restrictions around a junction. Residents were asked to reply by the end of April and the Council would see if the proposals needed modified before moving to the formal consultation stage. The letter stated, “if you do not respond I shall presume that you wish to see the proposals progress to the formal stage”. Ms D submitted her response supporting the scheme on 17 April. She also wanted the Council to install bollards on the grass verges to prohibit cars parking in those spaces.
- On 9 May the Council replied to Ms D’s complaint. It acknowledged there had been delays sending out the consultation letter due to other work. It said bollards would be cost prohibitive and impede the grass being maintained. On 13 June, the Council issued its formal consultation letter to residents and published the Notice of proposals. Again, there were options for parking restrictions. The letter also said if no response was received the Council would presume “you wish to see the proposals progress”. It was identical wording to the previous letter.
- The Council received seven responses from five properties. Two in part support, one full objection and two commenting on other matters. The Council wrote to residents on 12 August that responses from the consultation meant opinions were “divided”. It would therefore recommend to the Head of Service that restrictions be made to the junction. (This meant it would not install a yellow line on the street outside Ms D’s home). On 5 September, the case was sent to the Head of Service to decide. He was provided with a table of objections (this did not list responses supporting the proposals) and the Officer’s recommendation to only implement parking restrictions near the junction.
- On 19 November, the Council told Ms D the wording in the formal consultation letter was an “administrative error”. It had taken all comments received at both stages into account. The outcome would not have changed had the letter been differently worded. On 25 November, the parking restrictions came into effect.
- In December, the Council said it would consider Ms D’s stage two complaint. It issued its response on 19 August 2020. It apologised for the delay. It upheld the complaint because the formal consultation letter meant non-responses should have been considered as in favour of the proposals and “this would mean…more support for parking restrictions than against”. The Council said it would not consult again because the results would not differ and parking restrictions were now in place. It would rewrite the consultation letters for future cases.
What should have happened
- Under the Local Authorities’ Traffic Orders (Procedures) regulations 1996 the Council can consider whether restrictions are needed to prevent parking issues. It can carry out an informal consultation of residents in the first place to gauge the level of interest and assess the types of issues. It will draft up proposals and send an informal consultation letter to residents. It is up to the Council to determine which area should be consulted on any case. The Council then looks at the responses and can: withdraw proposals; modify the plans; or proceed to the formal consultation stage.
- The formal consultation is done as part of a batch with other schemes to manage the process. A statutory 21 day consultation process involves writing to residents again asking for their views. The Council should consider feedback. It says it looks at the comments received from both the informal and formal consultations. An Officer will then make recommendations to the Head of Service on whether to make a full Order/ part Order/ not proceed. The Head of Service should look at the consultation responses and also the overall merits of the proposals. The Council will notify residents about its decision.
- The Council has a two stage complaints process. An initial complaint should be replied to within 20 working days. A complaint can be escalated however the Council’s website guidance fails to set out how long this second stage response should take. I would expect a reply to be provided in most cases within 30 working days.
Was there fault by the Council
- There is fault by the Council. It has already acknowledged in its August 2020 response the formal consultation letter wording meant Officers should have considered non-responses as being in favour of the restrictions. That did not happen and instead the information passed to the Head of Service in September simply noted the five households who had responded and did not reference the other 35 plus homes as non-responders (and therefore in favour of the scheme). I also cannot see the responses from the informal consultation were reconsidered. The Council says that all the responses and other factors, such as the benefits of no restrictions, were taken into account. I have no evidence to show me that decision making process or what additional evidence was looked at and how this was balanced against the majority of homes being in favour of the scheme.
- Whilst the Council has partly acknowledged its fault, in its complaint response to Ms D, it says that further consultation will not be carried out because the decision would not change. I do not agree. The Council cannot prejudge what the outcome would be if it acted without fault. Furthermore, whilst some parking restrictions are now in place, they do not reflect the changes Ms D had sought and had commented on as part of the consultation process.
- The Council has also previously accepted there was delay in March 2019 progressing the case. I understand this was due to workloads, however it should have issued the informal consultation letters sooner.
- The Council also delayed responding to Ms D’s complaint. Her escalated complaint should have been replied to in February 2020. Instead, she received a response in August without an explanation for the delay. I appreciate the covid-19 events would have an impact on services however her case should have been responded to before the pandemic restrictions came into place.
- I do not see fault in the Council’s decision regarding the bollards. There is no duty on the Council to install street furniture if it considers it would not be of sufficient benefit to justify the cost. Ms D may disagree with that decision, but it is one the Council has a right to take in the absence of fault.
- In addition, there is no fault in the Council not consulting Ms D about parking restrictions in other areas. The Council has leeway as to which areas it consults depending on the scope of the proposals.
Did the fault cause an injustice
- The Council’s errors caused Ms D time and trouble pursuing her case. She has been left uncertain about the validity of the consultation process.
- The Council has agreed to:
- Pay Ms D £200 for time and trouble pursuing her complaint;
- Carry out a fresh consultation process for parking restrictions in the street where Ms D lives. This should be done in line with procedures, letters should be correctly worded, documentation retained and the decision making process clearly recorded. In addition, this needs to be done in a timely manner so the Council should set out the likely timeframe within four weeks of this investigation being complete.
- I have completed the investigation and upheld the complaint.
Parts of the complaint that I did not investigate
- I am not looking at events prior to 2019 because the Ombudsman expects a complaint to be pursued within 12 months of the problem arising.
Investigator's decision on behalf of the Ombudsman