Summary: Mr X complains about the introduction of an experimental traffic order on a road he lives near to. He also complains about the engagement exercise the Council completed and says it was not fit for purpose. We find fault with the Council for failing to keep accurate records of its decision making in relation to who to consult with during the engagement exercise. However, we do not consider the fault identified caused any injustice.

The complaint

1. Mr X complains about the introduction of an experimental traffic order (ETO) on a road he lives near to. He says the Council has repeated the same mistakes in process as previously identified by an Ombudsman investigation. Mr X also complains about the engagement exercise the Council completed before introducing the new ETO. He says the engagement exercise was not fit for purpose as it:
• did not include residents who were significantly impacted by the restrictions; and
• failed to survey a representative sample of residents and businesses due to a low response rate.

Mr X says the Council’s decision negatively impacts on older people, like himself, who may need or wish to use a car to access the residential area.

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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 spoke with Mr X and considered the information he provided.
6. I made enquiries with the Council and considered the information it provided.
7. I sent a draft decision to Mr X and the Council and considered their comments.

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What I found

Legislation

8. Road Traffic Regulation Act 1984, Section 9, allows councils to make an order to introduce an experimental scheme of traffic control. These are referred to in the Act as an experimental traffic order (ETO). This includes prescribing streets which are not to be used for traffic by vehicles at specific times.

What happened

Background

9. In June 2020, the Council made an ETO for a road, Road A, near to where Mr X lives in response to the COVID-19 pandemic. The ETO closed Road A to through traffic. The ETO took effect from July 2020. Mr X made a complaint to the Ombudsman about the Council’s decision to introduce this ETO.
10. We issued our findings on this complaint in September 2021. We found fault with the Council’s for how it considered its decision to close Road A to through traffic. We highlighted the Council failed to keep thorough records and failed to show how it considered the potential impact of the decision to close Road A on groups with protected characteristics, such as age.

What happened

11. Following the ETO in July 2020, the Council completed a review of the scheme in May 2021. The Council decided it should change the trial in Road A within six weeks of the date of the review. This meant the Council needed to decide whether to keep, change, or remove the traffic controls to Road A by June 2021.
12. The Council told us engagement with a specific set of residents and business allowed it to better understand levels of support and concerns for the controls. The Council confirmed it had no other contemporaneous notes of its decision making on its decision to complete an engagement exercise with the residents and businesses of Road A.
13. The Council provided a copy of its briefing document which set out the aims of the engagement exercise. It notes the engagement exercise was to help support the decision whether any, or all, of the experimental controls on vehicular access should be kept.
14. The briefing document did not outline any specifics about who the Council would consult with as part of the engagement exercise. It also did not outline any rationale for how the Council decided who to consult and survey.
15. The Council appointed a company to complete the engagement exercise with the residents and businesses located on Road A and other roads only accessible via Road A.
16. The company issued a report which highlighted:
• 18 residents and 29 businesses responded to the engagement exercise.
• Residents and businesses highlighted both advantages and disadvantages of the scheme.
• Suggestions were provided about how to overcome the disadvantages identified.
• When asked what should happen after the trial period, two residents suggested the street should go back to how it was. The rest of the residents who responded supported changes to the restrictions.
• 14 businesses wanted the street to go back to how it was. The remaining businesses made suggestions for changes.
17. The Council told us it recognised there were other local areas impacted by the access restrictions on Road A. It explained the aim of the engagement exercise was to capture the views directly from those on Road A, or on the adjacent roads only accessible via Road A. The Council did not provide any further explanation about why it was only interested in getting the views of the residents and businesses on Road A and the other roads.
18. Following the report, the Council decided to introduce another ETO. This would bring in a new restriction on vehicle access to, and parking in, Road A between the hours of 5pm and 8am. The new ETO came into effect in July 2021.
19. There is no record of how the Council considered the engagement report and how the findings of the report impacted and influenced its decision to introduce the new ETO.
20. In response to our enquiries, the Council confirmed it completed the engagement exercise and introduced the new ETO before we issued our findings in September 2021. The Council said it was therefore not able to implement the learnings identified in that investigation.
21. The Council said as six months have passed since the new ETO, it would complete a review. The review would be to decide whether to make the restrictions permanent, remove the restrictions, or to change the restrictions.
22. In response to our draft decision, the Council provided further evidence of its decision making in relation to why it decided to introduce a new ETO. The email showed the officer decided to proceed with a new ETO as the engagement exercise showed there was a reasonable level of support for retention of the restrictions. The officer decided there was therefore a need for a compromise and decided to trial the compromise solution under a new ETO.

Analysis

23. Mr X complained about the people the Council consulted during the Council’s engagement exercise. Mr X feels there were other residents who were significantly impacted by the trial restrictions that were not consulted.
24. The evidence suggests the engagement exercise came out of the Council’s desire to identify and better understand local opinions about the July 2020 ETO. It is important to highlight the engagement exercise was not part of any formal process and the Council was not required to complete the exercise. Therefore, it was at the Council’s discretion to decide who to consult.
25. There is no record of the Council’s decision making about how it selected who to consult during the engagement exercise. This is not good practice as the Council should show how and why it made its decisions. This is fault.
26. However, we do not consider the fault caused any injustice. This is because if the Council had kept proper records of its decision making, it is likely the decision on who to consult would be the same. Therefore, the fault had no impact on the decision itself.
27. Mr X also complained the Council failed to survey a representative sample of residents and businesses due to the fact the engagement exercise had a low response rate.
28. There is evidence the Council provided letters and survey forms to all residents on Road A and the other road. Equally, the Council conducted face to face interviews with all businesses on the affected roads. Therefore, we are satisfied the Council did engage and survey all residents and businesses on the affected roads.
29. The response rate to an engagement exercise is outside the Council’s control as it cannot force residents and businesses to engage with the process. It is for the Council to show how it considered the low response rate when it analysed the information resulting from the engagement exercise. It might be the low response rate impacted on how the Council used the information coming out of the survey. However, this is a matter for the Council. A low response rate does not automatically mean the Council cannot rely on and use the responses it did receive.
30. Following the engagement exercise, the Council decided to proceed with a new ETO to trial some new restrictions to Road A. The Council has provided an email from the officer outlining his reasons for why he decided to proceed with a new ETO. The Council accepts it would have been more transparent for this to be set out in a publicly available report.
31. As the Council has provided evidence of the rationale for proceeding with a new ETO, we cannot find fault with the decision itself. The Council officer was entitled to make the decision and the evidence shows the decision was made after consideration of relevant information. Therefore, this is professional judgement. As the Council has made its decision properly, we cannot find fault with the decision itself.
32. We also note the Council is now reviewing the trial restrictions to decide whether to make the restrictions permanent, to remove the restrictions, or to change the restrictions. Therefore, the Council is effectively remaking its decision on the restrictions, and it is open to Mr X to submit his views to the Council to consider. The Council should take care not to repeat the same faults with recording keeping as identified in this decision, and our September 2021 decision.

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Final decision

33. I find fault with the Council for failing to keep accurate records of its decision making in relation to who to consult with during the engagement exercise. However, I do not consider the fault caused any injustice.

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Investigator's decision on behalf of the Ombudsman