Decision : Upheld
Decision date : 25 Sep 2020
The Ombudsman's final decision:
Summary: Miss X complained the Council failed to take account of her mother, Mrs Y’s, mobility and access when it decided to place barriers on the path to the rear of Mrs Y’s property. The Council was not at fault for installing the barriers. It failed to respond to Mrs Y’s solicitor’s letter and delayed responding to Miss X’s complaint. It has agreed to apologise to Miss X and Mrs Y for the frustration this caused.
- Miss X complains the Council failed to take account of her mother Mrs Y’s mobility and access when it decided to place barriers on the path to the rear of Mrs Y’s property. It delayed responding to her complaint and correspondence and, in their current position, the barriers are failing to prevent anti-social behaviour.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- I have considered the information supplied by Miss X and have discussed the complaint with her by telephone.
- I have considered the Council’s response to my enquiries.
- I gave Miss X and the Council the opportunity to comment on a draft of this decision. I considered the comments I received in reaching my final decision.
What I found
- Councils have a general legal duty, when providing services, to do all they reasonably can to prevent crime and disorder. Councils also have legal powers under the Highways Act 1980 to improve paths and public roads. This includes the power to provide rails, barriers and fences to safeguard people lawfully using the road or path.
- The public sector equality duty was created under the Equality Act 2010. In summary, those subject to the equality duty must, in the exercise of their functions, 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.
- Foster good relations between people who share a protected characteristic and those who do not.
Background and previous complaint to the Ombudsman
- Behind Mrs Y’s property runs a footway. Following complaints regarding motorcycles using the footway as a rat run, the Council decided to install barriers on the footway. The Council’s view was that the majority of motor vehicles accessed the footway from the end nearest Mrs Y’s garage. It therefore decided to locate the barriers at that end to reduce the behaviour and to act as a visual deterrent.
- In late 2017 Miss X complained to the Ombudsman after the Council installed the barriers. This was because they stopped her mother, Mrs Y getting to her garage. The Council removed the barriers in March 2018 and agreed to carry out a consultation with residents.
- In August 2018, the Council wrote to residents to seek their views on reinstalling the barriers to deter the use of motorcycles along the path. The majority of responses supported the introduction of the barriers.
- In November 2018 a Council officer, Officer A, visited the site with a member of the local disability forum. The disability forum later confirmed the proposed design of the barriers would not impede anyone using a wheelchair or mobility scooter.
- Miss X emailed officer A to ask about the installation. Officer A emailed Miss X to advise her the barriers would be installed and this followed on from complaints by residents and was supported by the police. They would be installed further along the footway than the earlier installation. Officer A advised they were happy to discuss this with Miss X.
- Miss X requested confirmation of where the barriers would be located and said she was happy to meet with the officer. Officer A provided dates when they were available. Miss X suggested an alternative date. Officer A was not available but offered to send representation. Miss X said one of the parties to the meeting would prefer Officer A to attend so requested further dates. Officer A offered 11, 12 and 14 December.
- In December 2018 Mrs Y’s solicitor wrote to the Council raising concerns that the barrier would, if installed, be in breach of Mrs Y’s needs under the Equality Duty.
- On 18 December Miss X told Officer A the meeting was arranged on site for 21 December at 17:30. Officer A advised they would be on leave on that date but they would pick up any actions after the meeting. They emailed Miss X in early January to ask if the meeting went ahead. Officer A asked whether she wished to discuss it or whether there were actions to pick up from the meeting. Miss X said the meeting was informative and that the Council’s legal team were being liaised with about it. In early February 2019 Officer A advised Miss X they had met with the Council’s legal representatives who would arrange a formal response to the solicitor.
- Miss X contacted the Council in February 2019 requesting a response to Mrs Y’s solicitor’s letter. She wrote again in August 2019 to the Council’s complaints team, requesting a response and setting out her concerns. The Council has no record of sending Mrs Y’s solicitor a response. It acknowledged Miss X’s complaint in August 2019.
- The Council responded to Miss X’s complaint in October 2019. It apologised for the delay in responding. It set out it had carried out an informal consultation which supported the installation of the barriers. It had proposed reducing the barriers from three to two with an increased width between the barriers. The local disability forum had confirmed that in their opinion the barriers would not prevent access to the land [where Mrs Y’s garage is sited] from the footway. It concluded it was not clear how the proposed barriers would restrict Mrs Y’s access. It suggested officers met Miss X to establish if alternative options were available.
- In November 2019 the proposed barriers were discussed at a Police Casualty Reduction and Safer Highways meeting (a road safety partnership group) as the Council and police were still receiving complaints about motorcycles on the footway. Analysis of police data found a cluster of incidents of motorcycles causing nuisance in the area. It supported the installation of the barriers.
- In May 2020 the Council installed the barriers.
- If there is no fault in the way a council reaches a decision, the Ombudsman cannot question the decision itself. The Council consulted the police, the local disability forum and residents about the installation of the barriers. It was for the Council to decide where to place the barriers having taken into account all the relevant information. Miss X disagrees with the location of the barriers and says they have not prevented the anti-social behaviour. But there is no fault in the way the Council reached its decisions about installing the barriers or where to locate them. So, I cannot question the decisions.
- The Council took into account Miss X’s previous concerns about the barriers and consulted a local disability forum before they were reinstated. The forum confirmed the barriers could be accessed by a mobility scooter or wheelchair. The Council properly considered the matter of accessibility and had due regard to its public sector equality duty. The Council was not at fault.
- The Council sought to meet with Miss X. Officer A and Miss X were unable to arrange a mutually convenient date. While this is unfortunate it is not fault.
- The Council was at fault when it failed to respond to Mrs Y’s solicitor’s letter of December 2018. It also delayed responding to Miss X’s complaint. This caused Miss X and Mrs Y some frustration.
- Within one month of the date of this final decision the Council has agreed to apologise to Miss X for the frustration caused by the delay in responding to her complaint and to apologise to Mrs Y for the frustration caused by not responding to her solicitor’s letter.
- I have completed my investigation. There was no evidence of fault in the Council’s decision to install the barriers or their location. The Council was at fault for failing to respond to Mrs Y’s solicitor’s letter and for the delay in responding to Miss X’s complaint. It has agreed to remedy the injustice caused.
Investigator's decision on behalf of the Ombudsman