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Warrington Council (19 012 478)

Category : Transport and highways > Public transport

Decision : Upheld

Decision date : 16 Apr 2021

The Ombudsman's final decision:

Summary: the Council failed to apply its bus prioritisation matrix when removing a subsidy for a local bus service but that likely did not affect the decision to remove the subsidy as the Council provided an enhanced service elsewhere. Failure to follow the process caused frustration for Ms C and led to her going to time and trouble to pursue the complaint. An apology, payment to Ms C and agreement to send a memo to officers dealing with reviewing bus services is satisfactory remedy.

The complaint

  1. The complainant, whom I shall refer to as Ms C, complained the Council failed to consult or conduct an equalities impact assessment before removing a subsidy for a local bus service which resulted in it being cancelled. Ms C says the Council’s decision has left many residents without a bus service.

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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. 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. As part of the investigation, I have:
    • considered the complaint and Ms C's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided.
  2. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Transport Act 1985

  1. Section 63(1) says in each non-metropolitan county of England and Wales it shall be the duty of the County Council:
    • (a)to secure the provision of such public passenger transport services as the Council consider it appropriate to secure to meet any public transport requirements within the county which would not in their view be met apart from any action taken by them for that purpose.
  2. Section 63(8) says it shall be the duty of any Council, in exercising or performing any of their functions under the preceding provisions of this section, to have regard to the transport needs of members of the public who are elderly or disabled.

Equality Act and Public Sector Equality Duty

  1. The Equality Act 2010 means public sector organisations must have regard to the Public Sector Equality Duty (the 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).
  2. 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.
  3. 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.
  4. 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”.
  5. 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.

The Council’s local bus service support criteria

  1. This sets three objectives when reviewing support for existing local bus service contracts:
    • LTP priority themes which gets a 35% weighting. This includes giving priority to support public transport services which enable disadvantaged groups and communities to access employment sites and key local services;
    • accessibility, which gets a 40% weighting. This includes whether there is an alternative bus route or publicly available service, access for disabled people and degree of rurality;
    • financial considerations which gets a 25% weighting. This concerns the subsidy cost per passenger trip, funding options and usage.
  2. Each objective has listed under it a scoring process to enable the Council to measure the importance and ranking of existing local bus service support.

Background

  1. The Council managed a contract for the 5 and 35 bus services until 2018. This complaint concerns the removal of the 35 service. Although the Council managed the service contract Cheshire East Council and Transport for Greater Manchester provided funding, with the latter part funding the number 5 route. In 2017 Cheshire East began consultation on a new bus strategy. As part of that Cheshire East decided to stop funding for the 35 bus route. Following that Transport for Greater Manchester also withdrew its funding for the number 5 route. The Council therefore produced a report considering the options. The Council decided to stop the number 35 service and instead to provide an enhanced number 47 service.

Analysis

  1. Ms C says the Council, in withdrawing the 35 bus service, failed to consult or complete an equalities impact assessment. In contrast the Council says it was Cheshire East and Transport for Greater Manchester withdrawing its funding for the 5 and 35 service which resulted in its decision to stop funding the 35 bus service. The Equality Act 2010 does not require the Council to carry out an equalities impact assessment and does not specify consultation requirements. However, as I say in paragraph 8, the Equality Act means public sector organisations must have regard to the Duty when making their decisions. In this case I am satisfied the Council had a process already in place to do that as it had an adopted local bus strategy. That included the local bus service support criteria, which the Council refers to as the prioritisation matrix. That matrix sets out the criteria by which the Council will review its support for existing local bus service contracts. I refer to the main parts of the criteria in paragraphs 13 and 14. That makes clear although financial considerations make up 25% of the Council’s assessment process, 75% of the decision-making process concerns other matters which include giving priority to supporting public transport services for disadvantaged groups, the disabled and those living in rural areas.
  2. Given the Council has adopted a formal matrix by which to review the support for existing local bus service contracts I would have expected it to apply that matrix when considering the proposal to remove funding for the number 35 service. The Council accepts it did not formally follow the matrix. That is fault. The Council says it followed the guiding principles of the matrix though by comparing the number 35 and 47 bus services. The Council says this showed the proposed 47 service would have a significantly higher score than retaining the 35 service, particularly when applying the cost per passenger trip. The Council therefore considers by enhancing the 47 service it has minimised the impact of the withdrawal of the 35 service on areas for which the Council is responsible. The Council says its decision has maintained bus services for the Broomedge area and the withdrawal of the number 35 service has mainly impacted on other Council areas, for which it is not responsible.
  3. As I said in paragraph 6, under the Transport Act the Council is only responsible for securing public passenger transport services for residents within the county. What that means is the Council had to consider the impact the withdrawal of the number 35 bus service would have on residents in its own area. Whether it had an impact on residents that live in another Council’s area would not have been a consideration for the Council. I therefore cannot criticise it for not considering those other areas.
  4. Given it did not apply the adopted matrix when deciding to end the 35 service I am concerned the Council did not document its scoring of the 35 and 47 services when considering the removal of the number 35 bus service and replacement with an enhanced number 47 service. As I have said, failure to apply the prioritisation matrix is fault as is failure to document the scoring process which convinced the Council the 47 enhanced service would minimise the impact of the withdrawal of the number 35 on residents within the Council’s area. Nevertheless, I cannot ignore the fact the Council has acted to ensure residents who live within its area maintain access to a bus service now the number 35 service is withdrawn. So, while I consider the Council at fault for the way it documented its decision-making I could not say the Council failed to consider the impact removal of the number 35 service would have on residents within its own area. Consequently I am satisfied although there was fault in the decision-making process that fault did not likely affect the overall decision, on the balance of probability.
  5. I now have to consider the injustice caused to Ms C. I recognise Ms C would like the Council to now complete an equalities impact assessment and decide whether it should provide a subsidy for the number 35 service. However, as I said earlier, there is no requirement for the Council to complete a formal equalities impact assessment before withdrawing a bus service. In any event, as I said in the previous paragraph, although there was fault in how the Council documented its decision-making I am satisfied it has acted to mitigate the impact on residents within its own area. I therefore consider Ms C’s injustice is limited to her frustration the Council did not apply its prioritisation matrix and did not document its decision-making properly before withdrawing the service. She has also had to go to time and trouble to pursue her complaint. As remedy for that I recommend the Council apologise to Ms C and pay her £250. I further recommend the Council send a memo to those responsible for carrying out reviews of bus services. That memo should remind officers to follow the local bus service support criteria/consider the Duty and ensure those considerations are documented when making a decision about changes to subsidies for bus services.

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Agreed action

  1. Within one month of my decision the Council should:
    • apologise to Ms C;
    • pay Ms C £250 to reflect her uncertainty and time and trouble; and
    • send a memo to officers responsible for carrying out reviews of bus services to remind them to follow the local bus service support criteria/consider the Duty and ensure those considerations are documented when making any decisions about changes to subsidies for bus services.

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Final decision

  1. I have completed my investigation and found fault by the Council in part of the complaint which caused Ms C an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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