Summary: Ms C complains about the Council’s introduction of a cycle way which she says means a loss of parking and access to local shops by car which particularly affects her husband who is disabled and has a disproportionate and detrimental impact on her local Orthodox Jewish community. The Ombudsman has found no evidence of fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Ms C, complains about the way the Council has dealt with the introduction of a cycle way along her street. Ms C says because of the Council’s fault she suffers a loss of parking and access to local shops by car which particularly affects her husband who is disabled and there has been a disproportionate and detrimental impact on her local Orthodox Jewish community.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I read the papers provided by Ms C and discussed the complaint with her. I have considered some information from the Council and provided a copy of this to Ms C. I have explained my draft decision to Ms C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

Traffic management

6. The Road Traffic Regulation Act 1984 differentiates between traffic regulation orders (TROs) outside Greater London and ‘orders similar to traffic regulation orders’ within Greater London. The latter are known as traffic management orders (TMOs) although the procedures are the same. The procedures are set out in the Local Authorities’ Traffic Orders (Procedure)(England and Wales) Regulations 1996.
7. Councils will usually carry out some consultation in the area before deciding whether to go through the formal process of making a TMO. However, unless a council specifically indicates otherwise, consultation is not a referendum. The decision to make a TMO ultimately rests with the council and the Ombudsman must consider if there was fault in how it was made.

Public sector equality duty

8. Section 149 of the Equality Act 2010 says public authorities when carrying out their functions must have due regard about the need to:

• eliminate unlawful discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act
• advance equality of opportunity between people who share a protected characteristic and those who do not
• foster or encourage good relations between people who share a protected characteristic and those who do not

9. Having due regard means public authorities must consciously consider or think about the need to do the three things set out above. The general equality duty does not set out a particular process for assessing impact on equality that public authorities are expected to follow and there is no requirement to produce a document called an equality impact assessment although organisations may choose to do so.
10. The public sector equality duty covers age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It also covers marriage and civil partnerships, but not for all aspects of the duty.
11. It is for the courts to decide if a public authority has done enough to comply with the duty.

Background to scheme

12. The Cycle Superhighways programme (CS1) started in 2010. The Council worked in partnership with Transport for London (TfL) to develop highways improvements as part of this project between November 2013 and January 2015. The Council has confirmed that at that time there were no significant proposals relating to Ms C’s road other than it being part of a signed cycle route.

Key events

13. The Council consulted in January 2018 about a scheme along the east side of Ms C’s road to provide a protected track for cyclists. At the time there were no parking restrictions along the road. The proposal was to remove parking along the east side of the road.
14. The Council produced a report in July 2018 setting out the results of the consultation with a recommendation to introduce the proposed measures.
15. The Council advertised the required TMOs to implement the scheme. These included double yellow lines along the east side of the road, the cycle lane to be defined along the east side of the road and the introduction of two loading bays one of which would be on this road to help local businesses. The Council advertised the TMOs in the local press in September 2018 and posted notices along the road.
16. The Council received six objections to the traffic orders during the statutory consultation period. Ms C objected to the TMO at the end of September and raised concerns about the loss of parking, impact on the local community and questioned the need for a cycle route.
17. The Council produced a report in February 2019 which set out all the objections received and provided an assessment of each. The report accepted there would be a loss of parking along one side of the road and considered the alternative options to the scheme. The report referred specifically to the concerns about the impact on the Jewish community and included an equality impact assessment which referred to mobility and the provision of loading bays and nearby parking improvements to help the local community. The Council also provided an individual response to Ms C in April.
18. The Council subsequently considered the road was effectively operating as a one way road with the majority of traffic flowing in one direction and noted it already had a point of ‘no entry’ at one junction. The Council was concerned about highway safety issues from the instances when traffic travelled in the opposite direction against the majority traffic flow. The Council produced a video which showed details of the road and how it operated with all vehicles parked in one direction.
19. The Council decided the road should be formally made one way. The Council sent letters to councillors and residents notifying them of this proposal in August and posted site notices. Ms C objected to the one way proposal.
20. Ms C and other residents attended a Council meeting at the end of October to seek the removal of the cycle lane due to its detrimental impact on local residents, shop owners, the established Jewish community and school children. The minutes for the meeting include a detailed account of the concerns raised.
21. Ms C says alternative options to alleviate the impact on the local community including allowing some parking at certain times were dismissed without proper consideration. The Council says such an alternative would not have met the objectives of the scheme which was to provide a safe space for cycling. The Council accepts there are peak periods of cycling but considers the cycle route would have users throughout the day and evenings. The Council considers parking in the cycle lane at any time of day would cause safety issues for cyclists. The Council highlights the above video footage which shows the problems caused by an illegally parked vehicle in the cycle lane and its unsuitability for two way traffic due to its narrowness. 
22. The Council produced a report in November which set out its consideration of the objections received to the proposal to convert the road to one way traffic only. The Council decided to proceed with the scheme. The Council published the Order by site notice in November and it has now been implemented.
23. Ms C says the route will disproportionately disadvantage the local Orthodox Jewish community. The Council acknowledges in its Local Implementation Plan (LIP) Equality Impact Assessment (EQIA) that the Orthodox Jewish community is more car dependent than others. The Council highlights the following from the LIP:

“5. Reduce the dominance of vehicles to support more sustainable transport options. Hackney will explore the use of road user charging with the Mayor of London and neighbouring boroughs. (LN23) 

Impact - Positive

Reducing the dominance of vehicles is a key enabler for sustainable transport, however as above it is accepted some mobility impaired people may continue to be dependent on motorised modes to an extent and their needs would need to be taken into account through discounts and exemptions for any proposed scheme. This would enable them to fully benefit from the air quality and decongestion benefits which would be the key aim of any road user charging scheme. In addition behaviour change which road charging is designed to achieve may be more difficult among groups with large families such as the Charedi Jewish population who in some cases are currently quite car dependent”.

24. The Council has confirmed it did not carry out a detailed EQIA as part of the particular scheme for Ms C’s road.

Analysis

25. Based on the information provided, I have seen no fault in the process followed by the Council in its informal consultation and subsequent TMOs.
26. The Ombudsman cannot say if the Council breached the Equality Act 2010 as this would be a matter for the courts. However, I have looked at whether the Council has followed a proper decision making process including having due regard to its equality duties.
27. I am satisfied that the Council’s consideration of the objections raised concerning equality issues is enough evidence the Council had due regard. There is no requirement to produce a specific EQIA and I cannot say it was fault not to do so. In these circumstances, it is not open to the Ombudsman to question the Council’s decisions on this matter as they were ones the Council was entitled to reach.

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Final decision

28. I have completed my investigation as I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman