Summary: Mr X complained about the Council’s decision to approve a cycling and walking scheme which he says was based on a flawed consultation. The Council failed to deliver leaflets to a number of residents as part of the consultation. However, we do not find this caused a significant injustice. This is because the Council carried out a consultation using various methods and it considered relevant comments and concerns before deciding to approve the scheme. The Council was at fault for how it handled Mr X’s complaint. It should apologise and make a symbolic payment to recognise the frustration and time and trouble this caused.

The complaint

1. Mr X complains as part of his role in an association (the association) which represents the interests of the local community. Mr X says the Council carried out a flawed consultation about a proposed scheme to extend a cycling and walking route. He says the Council failed to consult with a number of residents, many of whom are opposed to the scheme.
2. Mr X further complains he does not believe the funding for the scheme is enough and therefore it fall on taxpayers to make up the cost. Mr X believes the Council’s failure to properly estimate the cost is an example of maladministration.
3. Mr X says the Council approved the scheme based on flawed statistics and it has failed to consider the views of the residents most affected by the scheme.

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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 question whether an organisation’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)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. If we are satisfied with an organisation’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 his complaint and considered information he provided.
9. I considered the Council’s response to my enquiry letter.
10. Mr X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

What happened

11. In 2020/21 the government awarded the Council funding to create a cycling and walking route (the scheme) in its area. Department for Transport (DfE) guidance required the Council to undertake appropriate consultation with local residents and relevant stakeholders by publishing plans and undertaking appropriate surveys. The guidance specified there is not a ‘veto’ on the scheme. The guidance said the DfT would not scrutinise consultation plans but just needed to know appropriate consultation had happened.
12. The Council proposed a route which would extend an existing cycling route. The proposed route included a new two-lane cycleway highway along a main road, through a park and via a minor road which as part of the plans the Council intended to permanently close to traffic.
13. In early 2021 the Council commissioned a Community Engagement Report and decided to run a consultation on the scheme which was on-line due to the ongoing COVID-19 pandemic and national lockdowns in place at the time. The consultation ran during March 2021 and was publicised on the Council’s website.
14. The Council said anybody could take part in the consultation using a web-based online portal. The Council also publicised the proposed scheme using social media outlets and via media releases such as radio and local newspapers. The Council also surveyed various user groups.
15. Along with the methods outlined above the Council also decided to commission a third party to deliver leaflets to around 4000 residents on 117 streets which are the nearest and most affected by the scheme to alert them to the consultation. Records show the third party commissioned to deliver the leaflets said it tracked its distributors’ movements to provide clients with peace of mind. The third party said it could then run historic reports of the tracking should any issues arise.
16. Records show Mr X’s association also published the plans and details of the consultation on its website. The Council said it intended to put the proposal before its committee in October 2021 to decide whether to approve the scheme.
17. Records show the Council received various comments of support and objections. The Council also considered a number of comments after the end of the consultation. Some of the Council’s considerations included:
• Alternative routes were considered but not viable due to funding constraints and issues around land ownership
• Plans on monitoring vehicle speed
• Concerns around the design of the road and the removal of pedestrian crossings
• Road layout and lighting
• Concerns around how residents would access their driveways
• Consultation with the Chamber of Commerce around assertions that the proposed scheme would impact local business.
• The permanent closure of the minor road would make a safer space for pedestrians and cyclists at the expense of a small number of vehicles.
18. In October 2021 the Council’s cabinet considered the scheme. The Community Engagement Report outlined the outcome of the consultation including consideration of objections and concerns. The report stated the Council received 1,182 responses with 71% in favour of the scheme. The committee meeting minutes stated the consultation had demonstrated overall broad support for the proposed route. It therefore decided to approve the scheme.
19. Shortly after the Council’s decision Mr X complained to the Council on behalf of the association. The basis of Mr X’s complaint was that the Council had not carried out the consultation process as intended and therefore the statistics the committee relied upon were flawed. Mr X said a number of residents had contacted the association stating they did not receive a leaflet and therefore were unaware and unable to take part in the consultation. Mr X provided a list of residents who said they did not receive a leaflet. Mr X said the association believed the outcome would be different if the Council had consulted as intended. Mr X raised other concerns with the scheme including:
• A failure to consider alternative routes for the scheme
• A failure to consider a petition of over 700 residents opposing the permanent closure of a minor road as part of the scheme
• A belief that the scheme will not have any measurable effect on the number of people who either walk or cycle in the area.
• The level of inconvenience and danger the scheme would cause to users of a busy major road.
• The decision to go ahead with the scheme was based on inaccurate and incomplete information and was not in the best interest of the taxpayer.
20. The Council did not respond to Mr X’s complaint until February 2022. It apologised for the unacceptable delay in doing so. The Council’s response covered an explanation of why it considered the busy major road would remain safe. It also said the minor road it proposed to close permanently would be subject of a Traffic Regulation Order (TRO) which would give residents the opportunity to submit representations. The response did not cover or touch upon Mr X’s other concerns or around the consultation process.
21. Mr X remained unhappy and complained to us on behalf of the association, mainly about the Council’s failure to deliver the leaflets to residents most affected by the scheme. He complained further to us that the association did not believe the Council could execute the scheme with the funding it had secured. He therefore believed the excess cost would fall to local taxpayers. Mr X provided a letter confirming the Council had declined to provide a further response believing it reiterated points he made in his initial complaint.

The Council’s response to my enquiry letter

22. The Council said it carried out the consultation for the scheme at a time when the country was in a national lockdown due to the COVID-19 pandemic. Therefore, it was limited in how it could consult with residents. It said it widely publicised the scheme and the letter drop was an additional layer to media releases and its online portal.
23. The Council said it acknowledged that some residents said they did not receive the leaflet but it had considered all additional comments in refining the design of the scheme. The Council said it enquired with the third party who delivered the leaflets who ensured all deliveries were undertaken correctly on the same day. Records show the third party provided partial tracking details of its leaflet delivery, however it could not provide tracking details for the areas highlighted by Mr X, claiming it only kept the details for seven days. The Council accepted this was not satisfactory and said it will ensure it is written into future contracts that tracking details are shared immediately after delivery.
24. The Council has confirmed that the design of the scheme is ongoing and changes are being considered following a recent Road Safety Audit. The scheme will require TROs where Mr X and other residents will have an opportunity to submit further representations.

My findings

25. Records show the Council decided to carry out consultation on the proposed scheme in early 2021 in line with DfT guidance. The consultation was not a referendum and the results were not binding. The Council used a number of methods to publicise the scheme and engage the public in the consultation including the leaflet drop. The Council’s consultation was in line with the requirements set out by the DfT.
26. As part of the consultation the Council decided to carry out a leaflet drop. Mr X said a number of residents did not receive the leaflets and so could not take part in the consultation and he provided the Council with details of this. The third party commissioned to deliver the leaflets said all the leaflets were delivered on the same day however it was only able to provide partial tracking details. On balance, given the lack of tracking and the number of residents who reported not receiving the leaflet it is likely the third party failed to make the delivery as planned. That is fault. However, I do not find it caused a significant injustice for the following reasons:
• Evidence shows that people within relevant postcodes did take part in the consultation.
• Records show the Council considered the substantive concerns and issues which Mr X raised in his complaint letter following similar objections from residents that did take part in the consultation. I have outlined these considerations above in paragraph 16. Therefore, even though a number of residents were unaware of the scheme or consultation the Council had already considered their concerns. So, but for the fault I cannot say the outcome would have been any different.
27. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of how much a complainant disagrees with the decision. The DfT guidance sets out that any local objection is not a ‘veto’ and therefore the results are not binding. The Council carried out a consultation and considered relevant comments and concerns. I cannot say the consultation process was overall fundamentally flawed and it met the requirements set out in the DfT guidance. It was for the Council to decide how to use the results and it decided to approve the scheme.
28. Mr X has also complained that he does not believe the Council can deliver the scheme with the funding it has secured and so, the additional cost will fall on the residents. I have not investigated this any further because the scheme has not started and so Mr X’s belief is speculative at this stage. In any case, how the Council spends funds is not for the Ombudsman.
29. The Council’s handling of Mr X’s complaint was poor. Mr X complained in October 2021, but the Council did not provide a response until February 2022. The Council’s response also failed to address his substantive complaint about the consultation process. That was fault and caused Mr X frustration.

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Agreed action

30. Within one month of the final decision the Council agreed to write to Mr X to apologise and make a symbolic payment of £100 to Mr X’s association to acknowledge the frustration and time and trouble caused by its poor handling of his complaint.

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Final decision

31. I completed my investigation. There was some fault in the consultation process, but this did not cause a significant injustice. There was fault in the way the Council dealt with Mr X’s complaint. The Council agreed to my recommendation to remedy the injustice this caused.

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Investigator's decision on behalf of the Ombudsman