Bournemouth, Christchurch and Poole Council (20 010 691)
Category : Transport and highways > Traffic management
Decision : Not upheld
Decision date : 09 Sep 2021
The Ombudsman's final decision:
Summary: Mrs C complains that the Council breached its duty under the Equality Act by granting permission for a new stand at a local sports club with no disabled facilities. She says it later introduced parking restrictions so that disabled people now have to park near that stand. Mrs C says this caused her injustice because she is ambulant disabled and now has to walk through the sports ground, or use a wheelchair, to use the toilet. The Council was not at fault. It considered its duties to disabled fans when designing the stadium and also when amending the parking arrangements. It continues to keep the matter under review.
The complaint
- The complainant, who I have called Mrs C, says the Council is at fault for:
- Allowing a sports club to construct a building unsuitable for disabled people, contrary to its duty under the Equalities Act 2010; and
- Changing the parking arrangements at a sports club so that disabled people must now park on gravel, which is unsuitable for wheelchairs. She says the new parking is also near the new stand which has no facilities for disabled people, meaning she has to walk or use a wheelchair to find a suitable toilet.
- Mrs C says this has caused her injustice as she now either has to sit in a stand with no toilet facilities with her friends or walk, (which she can do only with difficulty), or use a wheelchair to pass through the stadium to use the toilet. She says she has had to buy a wheelchair to facilitate this.
- Mrs C would like the Council to require the sports club to build a disabled toilet in the stand where she now sits and/or reinstate parking for disabled fans in the place where it was previously allowed.
The Ombudsman’s role and powers
- The Ombudsman cannot find that a body in jurisdiction has breached the Equality Act. However, we can find a body at fault for failing to take account of their duties under the Equality Act.
- We investigate complaints about ‘maladministration’ and ‘service failure’. 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 investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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 spoke to Mrs C. I considered her information. I wrote an enquiry letter to the Council. I considered the evidence provided alongside any relevant law.
- Mrs C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
What should happen
Ombudsman’s jurisdiction
- The Ombudsman only has powers over the Council, not over private sector organisations. In this case, the facilities that Mrs C complains about are owned and run by a sports club. The Ombudsman cannot, therefore, find fault with the club’s facilities unless the Council was in some way at fault for the way that they were built or are run.
- Nor could the Council, if it did find such fault, require the club to make changes to its ground.
The public sector equality duty
- The public sector equality duty requires, set out in the Equality Act 2010, requires public sector bodies to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different people when carrying out their activities.
The reasonable adjustment duty
- The reasonable adjustment duty, set out in the Equality Act 2010 applies to any organisation which carries out a public function. These organisations must take positive steps to remove barriers faced by those by with a disability because of their disability.
What happened
Facts
- Mrs C is a fan of a local sports club with a stadium in the Council’s area (‘the Club’). She is ‘ambulant disabled’ meaning that she can walk, but with difficulty. She describes walking as being as difficult as if her legs were tied together. She needs easy access to disabled toilet facilities.
- In 2013, the club applied to the Council for permission to build a new stand at its ground. The Council approved the application. The new stand had no disabled toilet facilities, but the Council considered that it was acceptable because it was part of a structure – the stadium - which did have such facilities.
- At the time, this was not a problem for Mrs C as she and her husband would park on the other side of the ground along the road leading to the stadium using their blue badge pass. They would then walk the manageable distance to their seats in that stand in which there was disabled toilet provision for women.
- In 2018, the club completed an access audit. Later that year, the Equality and Human Rights Commission wrote a report on accessibility for disabled users. It stated that, while the club met its requirements for provision for wheelchair users, it had not met its standards for provision for ambulant disabled supporters.
- The report says the club’s policy has ‘always been to offer its ambulant disabled supporters the option to sit anywhere in the stadium to suit their individual needs.’
- In 2019, the Council prevented blue badge holders from parking on the road leading to the stadium. It says it did so on the advice of the police who said that allowing parking in that place was a health and safety hazard.
- The Council said there was alternative parking provision on the other side of the ground but Mrs C says this is unsuitable for two reasons:
- It is near the new stand which has no disabled toilet facilities; and
- It is sited on a gravel area which is particularly difficult for those with wheelchairs or sticks to use.
- Mrs C complained to the Council. She complained about
- The fact that the new stand had no disabled toilet facilities, while it did have retail outlets; and
- The parking which, she said, discriminated against those, like her, who were unable to enjoy the game as much as the able-bodied fans.
- In its responses, the Council said:
- The space available for the new stand meant that it had proved impractical to provide disabled toilets. But alternative provision was available in an adjoining stand.
- It did not carry out an Equality Impact Assessment but, while this might have been desirable, it was not a legal requirement. It said it did consider all the issues that would have been considered by such an assessment.
- The police had said that cars parking on the access road ‘were an issue when moving the away supporters’ coaches from the ground which was felt was a potential safety issue’. It said ‘There are other nominated disabled parking bays near to the stadium that can be pre booked and used. My understanding from the club is that these are rarely fully utilised.’
Was there fault causing injustice?
Stand
- The stand was built in 2013. Mrs C says the Council did not have full regard to its duty under the Equalities Act to ensure the stand was suitable for disabled users because it did not commission an equality impact assessment.
- The Council says that, although it did not carry out an assessment, this is not a requirement and it did have due regard to its duties. It says it has commissioned various investigations into the stand since and no fault has been found with the stand.
- I cannot find the Council at fault for failing to do something it had no duty to do. I do not therefore find fault on that basis. The Council has agreed to carry out assessments in future.
- In any event, even if I did find fault, I could not recommend the remedy Mrs C wants as the Ombudsman has no authority over the Club.
Parking
- The Council said, in its complaints response to Mrs C, that it had put temporary traffic orders in place on the access road at the recommendation of the police who believed it was a potential safety issue. It said the matter had been considered by the safety advisory group at the time, which had approved the changes. It said, ‘the Club offered to direct any displaced blue badge holders to the gravel area if they wished. There are other nominated disabled parking bays near to the stadium that can be pre booked and used. [Our] understanding from the Club is that these are rarely fully utilised’.
- Mrs C says:
- She does not want to sit in the stand near the new parking as her friends set at the other end and it has no disabled facilities.
- The gravel area is not suitable either for wheelchair users or ambulant disabled because the gravel makes movement difficult.
- There are, in fact, no other spaces available for use.
Analysis
- The Council has told me that it has consulted with disabled fans over several years about the parking and that it had a meeting with Mrs C in 2019 about the question of the TTOs.
- It says: ‘After the TTO was originally introduced, a number of complaints were raised by [Mrs C] with the Club, the Council and local Councillors. A meeting was held on 9 October 2019, with all parties invited, including [the club], the Police, Councillors and [Mrs C]. It was agreed to make some small changes and that we would observe the alternative arrangements for 6 home games and a follow up meeting was arranged for the 31 January 2020. Unfortunately, [Mrs C] decided not to attend that follow up meeting and handed over the issue to the [supporters association] representative. As no other complaints had been received and the parking arrangements were working well, it was decided to continue with the TTO.
- Mrs C accepts that she had one meeting with the Council about the matter in 2019. Further, she tells me that the club will now be adapting one cubicle in the new stand for the use of ambulant disabled supporters. The Council has told me it continues to keep the question of disabled parking under review.
- The Ombudsman cannot find that a body in jurisdiction has breached the Equality Act. However, we can find a body at fault for failing to take account of their duties under the Equality Act. On the evidence gathered, I cannot find that the Council failed to have due regard to its duties under the Act.
- For that reason, I do not find fault.
Final decision
- I have reached a decision that the Council was not at fault. I have closed my investigation.
Investigator's decision on behalf of the Ombudsman