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Torbay Council (20 002 492)

Category : Transport and highways > Street furniture and lighting

Decision : Upheld

Decision date : 26 May 2021

The Ombudsman's final decision:

Summary: Miss B complained the Council breached disability discrimination law and human rights law when it installed public litter bins that are not accessible for use by disabled people, small adults and children. She considered the Council had not properly considered its responsibilities under the relevant law. She cannot use the bins but she also considers there is a wider injustice to others who will be similarly affected. There was fault which caused injustice to Miss B.

The complaint

  1. I call the complainant Miss B. She complained the Council breached disability discrimination law and human rights law when it installed public litter bins that are not accessible for use by disabled people, small adults and children. She considered the Council had not properly considered its responsibilities under the relevant law. She cannot use the bins but she also considers there is a wider injustice to others who will be similarly affected.

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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 considered the complaint and documents provided by Miss B. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Miss B and the Council and considered their comments.

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What I found

Summary of relevant law and guidance

  1. The public sector equality duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
  • Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010;
  • 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.
     
  1. The duty means public authorities must consider equality and good relations when they develop policies and deliver services. They must also keep these issues under review.
  2. Councils must ensure that a disabled person can use their services as close as it is reasonably possible to get to the standard usually offered to non-disabled people. This reasonable adjustment duty is set out in the Equality Act 2010.

Summary of what happened

  1. In early 2020 Miss B contacted the Council to complain about new large litter bins which it had installed locally and in nearby towns. She said the bins were not at a suitable height for disabled people, small adults and children and that a degree of strength was needed to lift the lid of the bins. Miss B said the bins breached disability discrimination and human rights legislation and they did not meet government guidance on bins.
  2. The Council responded to Miss B’s complaint by explaining the new bins had been placed in two specific locations and chosen because those locations suffered significantly with seagulls attacking overflowing open-sided bins. It said that in both locations there were still some open-sided bins for easy use for all but the areas needed bins which could combat the seagull problem.
  3. Miss B was not satisfied with the response so raised it with two councillors. One replied saying the majority of bins were accessible and there were only a few that have had to be more secure in their design because of the seagulls. The secure bins were only in areas where there was a large number of seagulls.
  4. The other councillor responded that it was possible for people to take their rubbish home with them and that it was not discrimination as some places didn’t make any provision of bins.
  5. Miss B complained to the Council that the councillors had breached the code of conduct. The Council responded to her and found no breach of the code.

Analysis

  1. In responding to the complaint the Council said the decision to install the large bins was taken around four years ago and was managed by the company who at the time held the contract for waste and recycling. The Council therefore had no information about how the decision was made.
  2. The Council, and agents and companies acting on its behalf, have duties to ensure they consider both the public sector equality duties and reasonable adjustment duties when making decisions about the provisions of services. The Council cannot show that happened and that is fault. It calls into question whether proper consideration was given to those duties.
  3. The Council commented that waste services are now provided by a wholly owned company and it is undertaking a review of bins within the area.
  4. The Council’s complaint responses to Miss B failed to address the key point she was raising and that too is fault. The Council’s first response explained the bins were installed because of the problems caused by seagulls but it did not tell Miss B how she could take her complaint further. Miss B then went to her local councillors who also failed to explain how she could escalate her complaint. Miss B then complained about the councillors’ conduct. That was rightly considered as a complaint about a potential breach of the code of conduct and there was no fault in how that was considered. But that process failed to capture and respond to what was at the heart of Miss B’s complaint.

Agreed action

  1. The Council will:
    • apologise to Miss B for the faults found;
    • publish its Local Environmental Quality Plan setting out its approach to the provision of litter disposal infrastructure detailing how it will have proper regard to its public sector equality duties and reasonable adjustment duties. It will consult on this document over the next six to twelve months;
    • consider how it can ensure that complainants are signposted to the complaint process when they correspond with councillors and frontline officers.
  2. The first point should be completed within a month of the final decision and the last within two months. The Council should update the Ombudsman every four months on progress with the second point and we will consider the complaint to be satisfied when the plan is published.

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Final decision

  1. There was fault which caused injustice to Miss B.

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Investigator's decision on behalf of the Ombudsman

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