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City of York Council (20 004 703)

Category : Transport and highways > Highway repair and maintenance

Decision : Upheld

Decision date : 19 Feb 2021

The Ombudsman's final decision:

Summary: Mr B complained that when work was undertaken on a public right of way, he was unable to use the advertised diversion. Mr B said he was stressed and inconvenienced by the actions of the Council because he was unable to use the diversions. Mr B said the Council breached the Equality Act 2010 because it did not consider the needs of disabled road users. We did not find fault with how the Council co-ordinated the diversion. We did find found fault with the Council’s complaint handling. The Council has agreed to apologise to Mr B to remedy the injustice caused.

The complaint

  1. Mr B complained the Council failed to take account of the needs of disabled road-users when cycle routes were blocked.
  2. Mr B complained about two routes:
    • In December 2018, a utility company fenced off a damaged manhole cover on a pedestrian path. The path was a public highway. The part of the path left for pedestrians to use was in disrepair and Mr B could not navigate it on his adapted bike.
    • In November 2019, a utility company needed to close a public right of way to undertake emergency electrical work. Mr B used the public right of way to cycle to work. He could not use the diversion. The diversion was in place for a week.
  1. Mr B said he was stressed and inconvenienced by the actions of the Council because he was unable to use the diversions.

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What I have investigated

  1. I investigated the actions of the Council when a public right of way was closed in November 2019.
  2. I did not investigate Mr B’s complaint about a public highway being in disrepair because there was an alternative legal remedy available to him. Under Section 56 of the Highways Act 1980 Mr B could apply to the Magistrates Court for an order requiring the highway authority to put the highway in proper repair.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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)
  1. 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 considered:
    • Mr B’s complaint and the information he provided;
    • documents supplied by the Council;
    • relevant legislation and guidelines; and
    • the Council’s policies and procedures.
  1. Mr B and the Council had the opportunity to comment on a draft decision. I considered Mr B’s comments before making a final decision.

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What I found

Legislation and Guidance

Street works

  1. The primary legislation dealing with street works in England is the New Roads and Street Works Act 1991, as amended by the Traffic Management Act 2004.
  2. Section 59(1) of the New Roads and Street Works Act 1991 requires street authorities to use their best endeavours to co-ordinate street works. The objectives of the co-ordination function are:
    • to ensure safety;
    • to minimise inconvenience to people using a street, including a specific reference to people with a disability; and
    • to protect the structure of the street and the apparatus in it. (Department of Transport, Code of practice for the co-ordination of street works and works for road purposes and related matters, 2012)
  3. On publicly maintainable highways, the street authority is the highway authority and usually this will be the relevant Council. (Department of Transport, Code of practice for the co-ordination of street works and works for road purposes and related matters, 2012)
  1. Public rights of way are highways that allow the public a legal right of passage. They have the same status and protection in law as highways.

Highways maintenance

  1. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary.
  2. Section 56 of the Highways Act 1980 says a person may apply to the Magistrates Court for an order requiring the highway authority, if the court finds that the highway which the respondent is liable to maintain is out of repair, to put it in proper repair within such reasonable period as may be specified in the order.

Equality Act 2010

  1. Councils must comply with the Public Sector Equality Duty to have due regard to the need to:
    • eliminate discrimination, harassment and victimisation;
    • advance equality of opportunity between those who share a protected characteristic and those who do not (protected characteristics include age and disability); and
    • promote good relations between those who have a protected characteristic and those who do not. (Equality Act 2010, section 149)
  2. It is not the Ombudsman’s role to decide whether a Council has breached the Equality Act 2010. This is a matter for the courts. We can consider whether a council has acted in line with its legal obligations in the Equality Act 2010 and may find fault if the council cannot evidence it has considered these. 

Council complaint procedure

  1. The Council has a three-stage complaint procedure:
    • Stage 1 – Line Manager Involvement – 5 Day response
    • Stage 2 – Head of service / Assistant Director - 15 Day Response
    • Stage 3 – Chief Executive / Director of service – 20 Day Response

What happened

  1. This chronology includes key events in this case and does not cover everything that happened.
  2. The Council leased the public right of way to a charity as part of a national cycle network.
  3. In November 2019, a utility company told the charity it needed to close the public right of way to undertake emergency electrical work. It said this work would take a week to complete.
  4. The charity told the Council about the emergency work and scheduled a meeting with the utility company.
  5. The Council considered different diversion routes and suggested one that had been used before. The Council told the charity for this diversion to be accessible, the utility company would need to remove wooden cross-beams from a fence next to a kissing gate at one end of the diversion. It also told the charity the company would need to erect signs telling people about the diversion.
  6. The Council contacted cycling organisations, an educational establishment where Mr B worked and councillors and asked them to publicise the closure of the right of way and the diversion. A local councillor checked signs were in place before the work started.
  7. A cycling organisation contacted the Council raising concerns about the accessibility of the route for people who were not confident cyclists or had physical disabilities. The Council gave the organisation details of the other diversion routes it considered and explained why the one it proposed was the most suitable. It explained the utility company would remove the wooden cross-beams from the fence next to the kissing gate and put up signs advertising the diversion.
  8. The charity met with the utility company and confirmed details of the diversion.
  9. The utility company’s contractor did not remove the wooden cross-beams from the fence before it started work. Members of the public complained they could not navigate the kissing gate. The Council told the contractor to remove the wooden cross-beams, which it did. Members of the public continued to complain about difficulties navigating the kissing gate. The Council checked the route and found the wooden cross-beams were still in place blocking the diversion for cyclists.
  10. The Council emailed the contractor about the wooden cross-beams. The contractor explained it removed them, but a member of the public replaced them. The Council told the company it needed to remove the cross-beams and to check the diversion daily to make sure it was accessible.
  11. The public right of way was closed for seven days.

Complaint

  1. In November 2019, Mr B told the Council that he could not use the diversion to cycle to work. He said he could not navigate the kissing gate and found it difficult to make a right turn into busy traffic, as directed by the diversion.
  2. The Council explained the public right of way was closed because of emergency electrical works and the issue with the wooden cross-beams. It apologised for the distress and inconvenience Mr B had experienced and advised that in future, diversion routes would be inspected on the first morning of works.
  3. Mr B replied that the Council had not met the terms of the Equality Act 2010 because the diversion was unsuitable for vulnerable cyclists as it involved a right turn onto a stretch of busy road.
  4. The Council responded at stage one and told Mr B it felt it had chosen the correct diversion. It explained there were limited choices and the alternative routes were considerably longer.
  5. Mr B asked for his complaint to be escalated. Mr B said he wanted:
    • A clear statement from the Council that it would abide by the Equality Act 2010.
    • The Council to provide alternative routes that were accessible to all, clearly signposted and properly advertised ahead of time.
  6. At stage two, the Council told him it would continue to abide by the Equality Act 2010. It said it aimed to ensure that when work was undertaken on its transport infrastructure, alternative routes were accessible to all, clearly signposted and properly advertised ahead of time where possible. It advised following his complaint, it had reminded staff about this obligation.
  7. Mr B told the Council he was not happy with its response. He complained it was late. He advised he wanted the Council to plan for infrastructure works properly, and to have clear lines of communication with utility companies and contractors.
  8. In response to my enquiries, the Council explained it overlooked responding to Mr B on this occasion. It apologised for the oversight.

Analysis

  1. The Council worked with the public right of way leaseholder, the utility company and the utility company’s contractor to minimise inconvenience to people that used the public right of way while it was closed.
  2. The Council considered different diversion routes and recommended the one it considered most suitable. The leaseholder and the utility company decided to use this diversion. The Council reminded the utility company it was responsible for signposting the diversion. It also shared details of the diversion with relevant organisations and asked them to publicise it. When the Council became aware of problems, it acted swiftly and liaised with the utility company’s contractors to resolve the issue.
  3. The Council’s stage two complaint response was late but by less than a week. I do not consider this caused Mr B significant injustice. The Council did not respond to Mr B’s last letter about this matter. The Council explained this was an oversight. However, Mr B lost the opportunity for his complaint to be considered at stage three of the Council’s complaint procedure. I consider an apology by the Council to be a suitable remedy for the injustice caused to Mr B by this fault.

Agreed action

  1. Within one month of the final decision the Council will apologise to Mr B for failing to respond to his last letter about this matter.
  2. The Council should provide the Ombudsman with evidence these actions have been completed.

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Final decision

  1. I have completed my investigation and uphold Mr B’s complaint. Mr B has been caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Parts of the complaint I did not investigate

I did not not investigate Mr B’s complaint about a highway being in disrepair because there was an alternative legal remedy it was reasonable to expect him to use.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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