Scarborough Borough Council (18 010 826)

Category : Transport and highways > Other

Decision : Upheld

Decision date : 13 May 2019

The Ombudsman's final decision:

Summary: Mr X complains about the Council’s disability access provision at Scarborough Harbour and the Council’s complaint handling. The Ombudsman finds fault with the Council for not responding to Mr X’s stage two complaint in a timely manner. The Ombudsman does not find fault with the Council’s disability access provisions. The Council has agreed to apologise to Mr X for the delayed complaint response.

The complaint

  1. Mr X complains about the Council’s disability access provision at Scarborough Harbour. In particular, Mr X complains:
  • there are no berths available for disabled/enhanced access harbour users;
  • the Council said it worked in partnership with Disability Action Group when it did not, and;
  • the Council’s complaint response was delayed.

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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. 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 spoke with Mr X and considered the information he provided.
  2. I made enquiries with the Council and considered the information it provided.
  3. I sent Mr X and the Council a draft decision and considered their comments.

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What I found

  1. The Equality Act 2010 protects people from discrimination, unfair treatment, and promotes a fair and more equal society.
  2. The public sector equality duty sets out that local authorities must have ‘due regard’ to:
  • the need to eliminate the types of conduct which are prohibited under the Equality Act 2010;
  • to advance equality of opportunity, and;
  • to foster good relations between people who have protected characteristics and people who don’t.

Disabled/Enhanced access policy (2018)

  1. The Council’s policy sets out that the Council will allocate all berths based upon the date of application and vessel/mooring compatibility criteria.
  2. The policy notes that an applicant, who needs an enhanced access berth, can decline a berth offered if it is not suitable for their needs. The policy states that in these circumstances, the applicant would retain their position on the waiting list until a more suitable berth becomes available.
  3. The process is different for applicants who do not need an enhanced access berth. Those applicants are removed from the waiting list if they decline the berth the Council has offered.
  4. A previous version of the policy (2009) noted the Council had worked in consultation and partnership with the Disabled Action Group (DAG). The Council explained it used the word ‘partnership’ in its broadest sense. The Council amended its policy in 2018 and removed the word ‘partnership’.

Scarborough Harbour

  1. Scarborough Harbour has two types of berths for disabled/enhanced access users. These berths are called enhanced access berths and disabled access priority berth.
  2. The disabled access priority berth is for the use of visiting craft, generally for a period of 14 days or less. This is not a permanent berth, but instead made available when required. The Council allocates this berth based on the specific requirement of the individual.
  3. The Council considers enhanced access berths suitable for any applicant, including applicants who need enhanced ease of access. The Council said it has 83 enhanced access berths at Scarborough Harbour. 65 of these are in the inner harbour and 18 in the outer harbour. These are permanent berths which the Council contracts out.
  4. The Council said that due to the nature of the physical environment in and around Scarborough Harbour, there are limitations on the number of berths which can be provided to allow ease of access.
  5. The Council explained that when requested, it will assist all users (where possible) with the entering and exiting of vessels.

Complaints handling

  1. Mr X’s complaint was investigated by the Council at stage one and two of the Council’s corporate complaint’s process. The Council said it aimed to respond to stage two complaints within 20 working days. Mr X said it took the Council over 30 working days to respond to his complaint.
  2. The Council said it sent its response within 26 working days and explained the delay was due to diary and leave commitments on the part of the director chairing the board.

Analysis

Disability/enhanced access provisions

  1. The Council has a disabled/enhanced access policy. This policy sets out the provisions the Council has put in place to meet the needs of disabled users. These include identifying suitable berths for enhanced access and ensuring no one requiring an enhanced access berth is disadvantaged if they decide the berth offered to them is unsuitable for their needs. The Council also explained it would assist users with entry and exit of their vessel if requested.
  2. These measures demonstrate the Council has considered its duty to prevent discrimination and to advance equality of opportunity.
  3. The Ombudsman’s role is to consider whether local authorities have properly considered relevant matters and acted in line with legislation, policy, and guidance. If councils have properly considered the matter, I cannot comment on the decision itself.
  4. The Ombudsman’s role is also not the same as a court. We cannot comment on whether the provisions made go far enough, or whether further provisions are needed, to meet the duties as set out in the Equality Act 2010. This is for a court to decide.
  5. The Council has demonstrated it had considered its responsibilities and made provisions to enable disabled users to access vessels in Scarborough Harbour. Therefore, I do not find fault with the Council’s policy and provisions and I cannot comment on whether those provisions are right or wrong.

Use of the word ‘partnership’

  1. It is clear from the evidence the Council had used the word ‘partnership’ in its 2009 version of its policy. The Council explained it did consult with the disabled action groups when the policy was created and that it had used the word ‘partnership’ in its broadest sense. The Council has now removed the word from the newest revision of its policy.
  2. In my view, the word ‘partnership’ suggests an element of cooperative working to achieve an outcome or aim. Therefore, the use of this word could have caused confusion over the extent of the role the disabled action group had. However, I do not find fault with this as, on balance, there is no suggestion the Council intentionally tried to portray a different relationship with the disabled action group than the one that existed.
  3. While I have not found fault, it is worth noting the Council has now amended its policy which, in my view, clarifies the matter. The new policy now makes it clear the Council have only consulted with local disabled group representatives. I find this action was appropriate in the circumstances.

Complaint handling

  1. Mr X said the Council did not respond to his stage two complaint within the 20-working day timescale. Mr X said the Council provided its respond after more than 30 working days and only after he chased the Council for a response. The Council said it responded within 26 working days.
  2. The Council has accepted there was a slight delay in providing its response to Mr X’s complaint at stage two. While I find a 6 working day delay is not excessive, it is nevertheless over the 20-working day target. Further, the Council did not contact Mr X to let him know its complaint response would be delayed which meant Mr X had to chase the Council for an update. This is fault.
  3. I find the identified fault did cause Mr X an injustice as he was inconvenienced by having to chase the Council for a response.

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Agreed actions

  1. In order to remedy the fault identified, the Council has agreed to write to Mr X and apologise for the delay in responding to his complaint at stage two.

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Final decision

  1. I find fault with the Council for the delays in responding to Mr X’s stage two complaint. I do not find fault with the Council for its disabled/enhanced access policy and provisions. The Council has agreed to my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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