Summary: We will not investigate this complaint stating the Council has failed to consider the Public Sector Equality Duty and Equality Act when it reviewed and reissued its Highway Maintenance Plan. We have not seen enough evidence of fault in the Council’s actions. Also, we cannot decide whether the Council has breached the Equality Act, therefore it is reasonable to expect Mr X to raise the matter in court.

The complaint

1. Mr X complains the Council has failed to evidence that it considered the Public Sector Equality Duty (PSED) and the Equality Act when it developed its Highway Maintenance Plan.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. 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 do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

3. I considered information provided by Mr X and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. 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.
6. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
7. The protected characteristics referred to in the Act are, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
8. The Public Sector Equality Duty was created under the Equality Act 2010. The duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act;
• advance equality of opportunity between people who share a protected characteristic and those who do not; and
• foster good relations between people who share a protected characteristic and those who do not.
9. The broad purpose of the Public Sector Equality Duty is to consider equality and good relations into 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.

What happened

10. The Ombudsman previously issued a decision requiring the Council to show that it has reviewed its Highways and Maintenance Plan. This is to show how it has considered the equality duty and assessed risks to protected groups as part of its decision making. The Council reviewed and reissued the Plan. The Ombudsman has advised the Council and Mr X that we are satisfied the Council has carried out the necessary action.
11. Mr X disagrees. He maintains the Council has failed to show that it has considered the Equality Act and PSED when developing and issuing its new plan.
12. However, we are satisfied the Council’s policy now explains how it has considered the equality duty and assessed risks to protected groups. It is not our role to assess whether the revised policy complies with the public sector equality duty. That is a matter for the courts.
13. In addition, in his correspondence with the Ombudsman, Mr X has suggested a willingness to take court action. The decision to whether the Council has breached the Equality Act is a matter for the court. If Mr X believes the Council’s actions are discriminatory and it has failed to properly apply the law, he can challenge the Council’s Highway Maintenance Plan in court.

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Final decision

14. We will not investigate Mr X’s complaint. There is not enough evidence to show the Council failed to consider the Equality Act or the PSED when it reviewed and reissued its Highway Maintenance Plan in April this year. And, as we cannot determine whether the Council has breached the Equality Act, it is reasonable for Mr X to ask the courts to consider the matter.

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Investigator's decision on behalf of the Ombudsman