Summary: Mr X complained the Combined Authority retendered for a subsidised bus service without consulting appropriately or assessing the impact of the decision on equality of access to services. He says this means he and others now cannot easily access the city centre by public transport in the evening. The Combined Authority’s review of its passenger transport subsidy guidelines was at fault. It did not properly consider the Equality Act and Public Sector Equality Duty in its approach. This means Mr X is uncertain whether the tendering decision would have been different, but for the fault. It has agreed to apologise to him and review its approach to prevent reoccurrence of this fault.

The complaint

1. Mr X complained the Combined Authority decided to stop its subsidised funding for an evening passenger transport service and retendered for the service throughout the week without consulting with affected groups or assessing the impact of the decision on equality of access to services.
2. Mr X says that as a result of this fault he, and others have lost out on late night access to public transport to the city centre. Users can no longer use day tickets from one company on evening services provided by a second company.
3. Mr X wants the Combined Authority to change its tendering process so affected persons are consulted in future before tending starts, and once the result is known.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate a complaint if it is about certain types of commercial transactions, including those relating to the operation of public passenger transport. (Local Government Act 1974, Schedule 5/5a, paragraph 3, as amended)
6. I have exercised my discretion to investigate this complaint which involves tendering for a bus service. This is because the matter complained about is how the Combined Authority carried out its tendering process, rather than about the tendering decision itself.
7. If we are satisfied with a Combined Authority’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

8. I spoke to Mr X about the complaint.
9. I asked the Combined Authority questions about the complaint and considered evidence it provided.
10. I considered the Government’s guidance: Equality Act 2010: Public Sector Equality Duty, What do I need to know?
11. I have written to Mr X and the Combined Authority with my draft decision and given them an opportunity to comment. I considered comments from the Combined Authority before making a final decision.

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What I found

Equality Act and Public Sector Equality Duty

12. The Equality Act 2010 means public sector organisations, including Combined Authorities, must have regard to the Public Sector Equality Duty. They must seek to eliminate unlawful discrimination, advance equality of opportunity and foster good relations in their policies and services. This includes the development and review of policies that might affect the lives of people with protected characteristics (age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, sexual orientation).
13. The Government’s guidance on the Duty explains that advancing equality of opportunity involves considering the need to:
• Remove or minimise disadvantages suffered by people due to their protected characteristics
• Meet the needs of people with protected characteristics; and
• Encourage people with protected characteristics to participate in public life or in other activities where their participation is low.
14. The weight public bodies give to the Duty, compared with other matters, will depend on how much the service area or decision they are considering could affect discrimination, equality of opportunity and good relations, and the extent of any disadvantage that needs to be addressed.
15. They must consider the Duty as an integral part of their decision making. Guidance says they must do so “in substance, with rigour and with an open mind so that it can influence the final decision”.
16. This does not mean public bodies have to use a particular approach to consider the Duty. They need to understand the potential effects of what is being considered on different people but there is no prescribed process for this. They do not have to use Equality Impact Assessments. Also, just showing they have done an Equality Impact Assessment is not, alone, proof of compliance with the Duty. It is not a tick-box approach.

Background

17. Commercial bus operators provide most bus services in the Combined Authority (the Authority)’s area without it providing any subsidy. The Authority must decide whether to subsidise certain additional services that it considers are important to the community to meet their public transport needs.
18. This Authority changed its policy for subsidising bus services during 2018. It says this was because it had less money to spend and needed to consider people’s changing use of, and demand for, bus services.
19. It introduced new passenger subsidy guidelines to:
• Look at alternatives where the subsidy per passenger trip exceeded £3.
• Stop subsidy for services where the subsidy per passenger trip was more than £4.
20. Where the Authority decides to subsidise a service it normally asks commercial bus firms to tender for that service. This is usually for them to run buses on a particular route at particular times and days of the week.
21. The Authority carried out an Equality Impact Assessment as part of its revision to the guidelines. However, having reviewed this Assessment, as part of its response to my investigation, the Authority decided its approach to this assessment fell significantly short of the standard required to demonstrate it had properly considered the Equality Act.

What happened

22. Mr X lives in a community linked to the city centre by a bus service. Most of the route is operated by Company 1 during the daytime, on a commercial basis without Authority subsidy. The Authority has subsidised certain evening services on the route during recent years. Until 2018 these were run by Company 1.
23. In October 2018 the Authority retendered its support for the subsidised evening services. Its retendering was in accordance with its new tendering policy, discussed above. This resulted in the award of the tender to run the evening service to Company 2. It also resulted in cessation of a specific late evening bus on the route that had served Mr X and his community, allowing them to return late from the city.
24. This late service time was not included in the tender because the Authority found its use level was below that set by its new policy. This meant the subsidy was more than £4 per passenger trip. The Authority says it considered providing a lower cost alternative, including re-routing of other services, but decided it was not practical. It also considered the existence of alternative evening bus services in the area.
25. The Authority’s record of how it made these retendering decisions refers to the low level of passenger use on that specific late evening service. It does not refer to how the Authority had regard to the impact of the decisions on the needs of people with protected characteristics, or how it satisfied itself on this matter.
26. Mr X complained to the Authority about the changes. He said it had not consulted with local people. It replied to explain the service had been withdrawn as it was not value for money. It later replied, at stage 2 of its complaint process, to further explain its decision making. It had decided not to consult because of the limited nature of changes to its services.
27. Mr X told me he could not find any evidence the Authority had consulted the community on the retendering. He said he now missed out on later night travel back from the city centre. He said senior bus users were particularly disadvantaged because they now had to buy tickets from two companies (Companies 1 and 2) to use evening services. This meant they missed out on savings from single company senior citizen bus passes. He was worried because commercial providers were increasingly pulling out of other services around the country. He wanted the Authority to change how it tendered to make sure it consulted with affected people in future.
28. The Authority told me that free bus passes are valid on any bus service so people are not required to purchase additional tickets.

My findings

29. The Authority’s revised passenger transport subsidy guidance does not show how it was developed with appropriate regard to the Equality Act and Public Sector Equality Duty. This was fault. Because of this fault, the Authority cannot show how its tendering decisions about services affecting Mr X, were taken with proper regard to this duty.
30. I cannot say that, but for this fault, the Authority would necessarily have decided to subsidise the services affecting Mr X. I cannot ask the Authority to retender or change existing tenders. These are contractual matters.
31. However, Mr X is left with avoidable uncertainty about the matter. The Authority should therefore apologise to him for this and explain the action it is taking to prevent re-occurrence of the fault.
32. It has agreed to review its approach to Equality Impact Assessments, use of passenger data and its approach to consultation about bus service provision. It will do so as part of its 2020-2021 budget setting. This should result in publication of revised passenger subsidy guidelines that show how they have had due regard to Equality Act obligations. The Authority will, by doing so, also review its approach to other areas of policy so that it is sure its guidelines conform to the requirements of Equality Act and Public Sector Equality Duty.
33. The Equality Act and Public Sector Equality Duty are not prescriptive about what level and type of consultation should be taken with groups sharing Protected Characteristics when a policy is reviewed. This is a matter for the Authority to consider in developing a revised policy.
34. The Authority should ensure decision makers in all areas are aware of this revised policy, and how to apply it to decision making.

Agreed action

35. Within one month of my final decision the Authority should apologise to Mr X for uncertainty caused by its fault in developing its policy.
36. The Authority should, as part of its 2020-2021 budget round:
• Review its approach to assessing the impact of policies and decisions on equality, having proper regard to the Equality Act and Public Sector Equality Duty.
• Review its passenger subsidy guidelines, having regard to this revised approach.
• Ensure relevant officers involved in policy making are aware of changes to the approach and policy.

The Authority will provide the Ombudsman with six monthly updates on actions taken to implement this agreed action and then provide a copy of the new policy and approach to the Ombudsman on its completion.

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Final decision

37. I have completed my investigation as I have found fault causing Mr X an injustice. The Combined Authority has agreed action to remedy this injustice and prevent its reoccurrence.

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Investigator's decision on behalf of the Ombudsman