Summary: Ms X complained the Council’s consultation for a traffic regulation order in 2020, 2021 and 2022 was insufficient and unfairly disadvantaged people who did not use the internet. Ms X further complained the Council failed to properly consider the impact of the order on elderly and disabled residents. There was no fault in how the Council implemented the traffic orders or how they considered their impact. There was fault in how the Council responded to Ms X’s complaint however this did not cause her an injustice.

The complaint

1. Ms X complained the Council’s consultation for a traffic regulation order in 2020, 2021 and 2022 was insufficient and unfairly disadvantaged people who did not use the internet. Ms X further complained the Council failed to properly consider the impact of the order on elderly and disabled residents. Ms X says she is unable to access public transport or go anywhere during weekends because of the impact of the road closure and it unfairly impacts elderly and disabled people.

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The Ombudsman’s role and powers

2. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
3. 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)
4. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’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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What I have investigated

6. I have investigated the temporary road closures the council used in 2020, 2021 and 2022. I have not considered the Council’s statutory consultation process in 2022 for the reasons I explain in paragraph 44.

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How I considered this complaint

7. I read the documents Ms X provided and discussed the matter with her.
8. I considered the documents provided by the Council in response to my enquiries.
9. I considered the Road Traffic Regulation Act 1984.
10. I considered the Equality Act 2010.
11. Ms X 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

Relevant legislation

12. A traffic regulation order (TRO) can be used by a council to restrict or stop the use of the road network. They aim to improve road safety and access to facilities. TROs are issued in line with the Road Traffic Regulation Act 1984 and the procedures are set out in the Local Authorities’ Traffic orders (Procedure) Regulations 1996.

Experimental TRO

13. Under Regulation 22 of the 1996 Regulations councils may make Experimental Traffic Regulation Orders (ETRO). Councils can use these orders where they are considering making a temporary TRO permanent.

Temporary TRO

14. In May 2020 the Government’s Department of Transport announced that it had allocated money to councils in response to COVID-19 to fund ‘Emergency Active Travel Measures’. It described these as measures designed “to make it easier for people to choose alternatives to public transport, a series of measures are being rolled out to encourage more people to cycle instead […] to create pop up and permanent cycle lanes and reallocate road space”.
15. The 1984 Road Traffic Regulation Act allows local councils which are highway authorities to issue Temporary Traffic Regulation Orders. These can, for example, be used to shut or restrict roads to vehicular traffic for use as temporary cycle lanes. They can last for a maximum of 18 months.
16. The 1984 Act has always allowed councils to issue temporary TROs “because of the likelihood of danger to the public, or of serious damage to the road, which is not attributable to such works”. Further to the Government announcement above it passed a Statutory Instrument which allowed councils to use this part of the Act to issue temporary TROs “for purposes connected to coronavirus”. The Instrument gave councils specific instructions on how they should publicise and explain the use of such temporary TROs. The Government also advised the temporary TROs could be used for a range of purposes ‘connected to coronavirus’ including “restricting certain roads to certain types of traffic”. This applied until 30 April 2021.
17. The law only required the Council to give seven days’ notice of the TTRO. It did not require it to consult or reconsider if it received objections.

Equality

18. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. The Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
19. The ‘protected characteristics’ referred to in the Act include age and disability.
20. Indirect discrimination may occur when a service provider applies an apparently neutral policy or practice which puts people who share a protected characteristic at a particular disadvantage.
21. 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; and
• Advance equality of opportunity between people who share a protected characteristic and those who do not.

What happened

22. In March 2020 the country was subject to a national lockdown due to the Covid-19 pandemic. In response to the impact of the pandemic the Council decided to pedestrianise Road A to allow people to maintain distance from each other and to support business.
23. The Council issued a temporary TRO to close Road A to vehicles at the weekend throughout July and August 2020. It sent a letter to residents and business occupiers in the area to inform them of the closure. The letter provided an email address for people to provide any observations about the proposal.
24. The Council sent another letter in August to say it was extending the temporary weekend closures until the end of October 2020. It provided an email address for observations.
25. The Council published the notice it intended to implement a temporary TRO during the weekends in a newspaper in March 2021. The Council wrote to residents and businesses in the area. It said it was reintroducing road closures as a trial from then until the end of October 2021. The Council issued the temporary TRO to close Road A to allow outdoor hospitality and for public safety due to the Covid-19 pandemic.
26. The Council held a public consultation on the closures between 17 April 2021 and 31 October 2021. This was available online and was published in the newspaper. The Council stated its officers engaged with members of the public face to face and sought feedback. Paper copies were available on request.
27. The Council issued a TRO (EO) in May 2021 to take effect from 4 June 2021. The Order closed Road A to allow events such as alfresco dining. The Council publicised this in two newspapers and online. It stated that it would consider making the order permanent. It stated any person wishing to object to the order being continued or reproduced could object within six months.
28. In June 2021 the Council asked Transport for London (TFL) if there was a possibility of having an additional bus stop in each direction on Road B to replicate Road A. TFL said there was no need to provide additional stops as the replacements were sufficient. It said there was a stop on Road B which was parallel, and people could hail a bus anywhere on Road C, which ran along the bottom of Road A.
29. In October 2021 Ms X states she complained to all local Councillors. She said the bus stops that were removed due to the road closures meant that many people had to walk more than a mile, some of it uphill which was not possible for the elderly or anyone with a physical disability. She said the replacement stops had no seat and no shelter. She said the lack of accessible public transport prevented some residents from going anywhere at the weekends while the road was closed. She said the Council had not properly consulted with residents about the closures.
30. The Council reviewed the pedestrianisation of Road A at weekends at a strategic planning and transport overview and scrutiny committee in November 2021. It decided to undertake the statutory consultation process to enable future weekend closures.
31. In January 2022 Ms X raised her complaint with the Council again. She said the online invitation to comment on the proposal did not give opportunity for free text and did not reach elderly people.
32. The Council responded and stated because it was a complaint about a policy it could not consider it through the corporate complaints procedure. It directed Ms X to complain to the Councillors responsible for the area.
33. Ms X complained to the Councillor who replied. They stated the consultation showed the majority of people supported the closure and the Council shared data from the consultation with TFL as they were the decision maker on bus provision.
34. The Council published a further temporary TRO in March 2022 to close Road A for alfresco dining and other events. The Council wrote to residents and business in the areas and told them it was closing the road at weekends.
35. In response to my enquiries the Council stated it was aware the temporary weekend closures on Road A may negatively impact some elderly and disabled users who either normally parked on the road or relied on the two buses. It ensured alternative bus stops were provided and asked TFL to consider additional bus stops. It also maintained access to Road A from the side roads.
36. The Council stated that it is currently designing a permanent scheme. As part of that it will complete an equalities impact assessment and liaise with stakeholders.

My findings

37. The Council followed the legislation and guidance in place at the time when it implemented the temporary TROs in 2020, 2021 and 2022. The Council published the notices in line with the legislation. It was not obliged to consult with members of the public.
38. The Council held a public consultation for the experimental TRO. It published it online, in the newspaper, and on social media and it engaged with members of the public on the street. Ms X had the opportunity to raise her objection against the experimental TRO during the public consultation, which she did.
39. The Council was aware the road closure may impact some members of the public due to bus stops being moved. It liaised with TFL to ensure temporary stops were implemented and discussed the need for further stops. There was no fault in how the Council considered its equality duty when it implemented the TROs. Although some people may have been negatively affected by the movement of the bus stops, other people will have benefitted.
40. In any case the Council will further consider the equality impact and any objections as part of its ongoing TRO consultation process.
41. There was no fault in the Council’s actions in relation to closing the road at weekends during the summer months in 2020, 2021 and 2022.
42. When Ms X complained to the Council it stated it could not consider the complaint as it was about a Council’s policy. Ms X’s complaint was about the way the Council had consulted the public and how it considered its public sector equality duty. Therefore, the Council could have considered the matter through the corporate complaints process. The Council’s failure to do so was fault, however it did not cause Ms X an injustice. This was because I have now investigated Ms X’s complaint and did not find there was fault in the Council’s actions that led to the complaint.

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Final decision

43. I have completed my investigation. There was fault in the Council’s actions however that did not cause an injustice.

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Parts of the complaint that I did not investigate

44. I have not investigated the Council’s actions in relation to the statutory consultation process in 2022. This is because the Council has not made a final decision on that matter. It is open to Ms X to challenge the validity of any resulting TRO in the Courts.

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Investigator's decision on behalf of the Ombudsman