Summary: We found fault by the Council on Mr J’s complaint of it failing to properly consider the removal of experimental traffic regulation orders which closed roads during Covid-19 lockdowns. It failed to provide evidence considered in support of its decisions to revoke the orders or to let them lapse. It failed to get updated information about the scheme’s operation and had no written procedure. It published incorrect information in a letter which it failed to correct for months. The agreed action remedies the injustice caused.

The complaint

1. Mr J complains the Council failed to properly consider whether temporary restrictions on motor vehicles for two roads near him, which were introduced during the Covid-19 lockdowns, should be removed: as a result, the roads are not as safe as under the scheme and he will have to resort to using his car more instead of walking or cycling to the shops.

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The Ombudsman’s role and powers

2. 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)
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. 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”.

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The law and guidance

5. The Council has powers to issue traffic regulation orders. These allow councils to prohibit, restrict, or regulate the use of a road by vehicles and pedestrians. There are different types of orders including permanent, experimental, temporary, or those for special events. An experimental traffic order shall not remain in force for longer than 18 months. (section 9 (3) Road Traffic Regulation Act 1984)
6. In May 2020, the government introduced law to allow councils to make such orders using an emergency procedure. The aim was to speed up and simplify making them. (The Traffic Orders Procedure (Coronavirus)(Amendment) (England) Regulations 2020)
7. The government also issued statutory guidance about making changes to how people get to work in future. The emphasis was on ‘active travel’ which meant it expected councils to make significant changes to their road layouts to give more space to cyclists and pedestrians. It gave examples of measures (or interventions) that could be done such as introducing pedestrian and cycle zones which could be temporary. (Traffic Management Act 2004: network management in response to COVID-19 (9 May 2020))
8. The government allocated additional funds to councils to introduce such schemes. Its guidance said measures could be introduced on a temporary basis. This could include the use of experimental traffic regulation orders used to trial schemes which can later be made permanent. Councils must have consultation running alongside implementation for a period of six months.
9. In November, the government updated the guidance to include a section on ‘engagement and consultation’. The government said councils should consider the impact of changes on, “all road users, taking into account the need to provide for increased walking and cycling”. It said, “effective engagement with the local community, particularly at an early stage, is essential to ensuring the political and public acceptance of any scheme. The department advises engagement as good practice even where there is no legal requirement to do so for the measures being proposed”.
10. The government said trial or experimental schemes should be left in place for the full duration of the order. This will allow them to settle in and for changes in travel patterns and behaviours to become apparent so that an informed decision can be made. Adjustments may be necessary to take account of real-world feedback, but the aim should be to retain schemes and adjust, not remove them, unless there is substantial evidence to support this.
11. The guidance was updated in November 2020, January 2021, February 2021, July 2021, and April 2022.

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How I considered this complaint

12. I considered all the information Mr J sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr J and the Council. I considered their responses.

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What I found

13. In 2020, the Council introduced two Experimental Traffic Regulation Orders (the orders) near to Mr J’s home. This type of order can impose traffic and parking restrictions, such as road closures and controlled parking, for example. It can stay in force for a maximum of 18 months.
14. The orders introduced a scheme which closed two roads. The aim of the scheme was to reduce the impact of increased traffic and possibly increase benefits for cycling and pedestrians.
15. Mr J is unhappy with the Council’s decision to initially revoke them but later to let them lapse almost two years later. He believes the restrictions on the roads should remain. He says it failed to properly consult or consider government guidance before deciding not to extend them.
16. The Council explained it made the orders after the government’s instructions to carry out schemes to encourage sustainable transport options during the pandemic on an emergency basis. It monitored the orders’ impact on the wider area and sought views from those in both the immediate, and wider, community. During the monitoring and consultation period, government guidance changed.
17. It explained the scheme was not universally popular as it had a negative impact on some parts of the community more than others. After discussions with local councillors and a Council director, it decided to work with the community to find a conventional traffic calming scheme more people were happy with. The results of consultation showed the removal of the orders was supported by the majority of those responding, including councillors.
18. The Council accepts an unapproved and unsigned letter was sent out in July 2021 wrongly telling residents the scheme would become permanent. At the time, not all the consultee responses were received, and no draft report issued for senior officer approval.
19. It claimed it sought opinion during the scheme and upto when the orders lapsed.
20. These are key dates:

2020:

• June: the Council introduced the scheme;
• July: it started consultation a month after the scheme’s implementation. This lasted six months;
• August: the scheme came in to force;
• October/November: it carried out surveys during a three-week period. This was a mini consultation to get the views of residents in the area about traffic impact outside the scheme’s roads. Most of the residents who responded would not support the introduction of parking restrictions to improve traffic flow or footway parking, for example. The Council provided a copy of the feedback report for the snap survey. Twenty-five people responded and the results showed they did not support parking restrictions to improve traffic flow, removing footpath overrunning, or footway parking. Some of the comments referred to the scheme’s closures making traffic much worse in the surrounding roads. It decided not to introduce any further measures;

2021:

• February: the consultation period ended;
• July: the Council told residents the scheme was to become permanent. This was incorrect;
• October: a decision report, a copy of which I have seen, was presented to the Place Operations Board who decided to revoke the orders. The report shows the majority of those who responded were not in favour of closing either road permanently. It noted local councillors saying while residents of the closed roads were marginally positive about the scheme, it was rejected by the wider community who may live in adjoining roads who felt it made their traffic problems worse. It noted re-opening the roads would ease pressure on a congested and dangerous junction. The Council says it corrected the error in the July letter;
• November: The Council sought legal advice, a copy of which I have not seen, following further representations from individuals and external bodies. The advice was to delay making a decision. The Council did not revoke the orders in December as planned; and

2022:

• February: the physical measures installed were removed and the orders lapsed.

My findings

21. The Ombudsman’s role is to review the procedure followed by councils when making decisions. If a council has followed the correct process, considered all relevant information, and given clear and cogent reasons for its decision, we usually cannot criticise it. We do not make decisions on councils’ behalf or provide a route of appeal against their decisions. We cannot uphold a complaint simply because a person disagrees with what a council has done.
22. I found fault on this complaint. In reaching this conclusion, I took the following in to account:
1. Once the experimental traffic orders came in to force, there was a statutory six-month period within which anyone could object to them. The evidence shows the Council complied with this requirement because it carried out consultation between July/August 2020 and February 2021.
2. I have seen a page on the Council’s website inviting the public to respond to a questionnaire about this scheme by February. It explained after this period, all objections and comments go to the Director of Environment and Community Services for investigation and consideration as to whether the orders should be continued indefinitely or abandoned.
3. I am satisfied the Council considered these objections. This is because the decision report sets out the: results of the consultation; comments received in full during this period, photographs residents sent of the impact the scheme had on their roads; comments received from councillors. It also referred to two petitions received, one supporting one road closure, the other against both road closures. It also shows the police were consulted and responded to the orders. During this period, it also consulted residents who did not live on the two roads about the impact of restrictions.
4. The report set out three options available to the Council about the future of the scheme. It could: make the orders permanent; revoke them; allow the orders to run for the full 18 months and then remove the closures. It recommended revoking the orders.
5. To revoke the orders, the Council needed a separate traffic order, called a revocation order. Despite the recommendation, the Council decided not to make a revocation order. This is because it received further representations from individuals, external bodies, and obtained legal advice. The legal advice said the Council should delay making the revocation order. I have not seen a copy of this advice but assume it was in response to a legal challenge to its decision to revoke the orders. Instead of making revocation orders, the Council decided to let them automatically lapse in February 2022.
6. Government guidance changed after the orders were introduced. The initial guidance said councils should, ‘monitor and evaluate any temporary measures they install, with a view to making them permanent’. The guidance was revised in November 2020 to say effective engagement, especially at an early stage, is good practice. It also went on to say experimental schemes should be left in place for the full duration of the order. This allowed them to settle in and for changes in travel patterns and behaviours to become apparent which allows a council to make an informed decision. It also said adjustments may be necessary to take account of ‘real-world’ feedback with the aim being to retain schemes and adjust them where possible.
7. On balance, I am not satisfied the Council did enough following the initial six months to allow it to go on and make an informed decision about the future of the scheme. This is because the mini survey was done in October/November 2020 and the six-month consultation period ended in February 2021. When the decision report was produced in October, a further eight months had passed.
8. During this period, the Council had no updated information about the scheme’s operation or residents’ views and whether the problems expressed during the initial six months, continued. The scheme might have settled after the first six months with the public changing their travel behaviour, for example. When the Council decided to let the orders lapse, 12 months had passed from the end of the initial consultation.
9. The Council claimed it sought opinion all the way through the period until the orders lapsed. It provided no evidence of doing so.
10. I found no engagement during the second or third six-month periods. I fail to see, therefore, how the Council complied with government guidance. The guidance recommended leaving schemes in place for the full duration of the order with a view to making them permanent. This was to allow schemes to settle in, with councils taking account of feedback. The scheme might have settled in following the ending of the initial consultation period.
11. I consider the Council could have done more to engage with the local community about this scheme in the last 12 months of the orders. The failure to do so means I am unable to say it properly considered whether the problems expressed during the initial six-month period remained. As noted, they might have resolved, for example, as local drivers remembered the road closures and took different routes, so avoiding the problems on other roads of cars reversing up drives. for example. They might not have resolved. The point is the Council did not know.
12. Nor have I have seen evidence showing what the Council considered when it decided not to revoke the orders or when it decided to let them lapse. I have seen no record of either decision setting out the reasoning behind them.
13. It would have been good practice for the Council to have had some written procedures for the process it would follow after the six-month consultation, setting out what factors it would take in to account, for example, and how it would seek updated information and views about whether the scheme has settled in or not.
14. The Council accepted it sent the unsigned and unapproved letter wrongly saying the scheme would become permanent. The officer who sent it did not have receipt of all the consultee comments and had not been overseen by a senior officer. It took the Council three months to correct what the letter had said.
15. I am satisfied the identified fault caused Mr J an injustice. This caused him avoidable distress as he has the uncertainty of not knowing whether the outcome would have differed but for the fault found.

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Agreed action

23. I have considered our guidance on remedies.
24. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. To send Mr J a written apology for its failures to: provide evidence about why it decided not to revoke the orders; consult and obtain updated information about the operation of the scheme when it produced the decision report and when it decided to let the orders lapse; show it had any written procedures for dealing with these types of schemes, particularly consultation; ensure the letter giving wrongful information about the scheme was checked and authorised; correct what the letter had said promptly.
2. Start a review to ensure it has written processes and procedures to follow for these types of schemes which includes what consultation is required throughout the entire process.
3. Act to ensure there are proper procedures and checks in place to stop unauthorised letters getting sent to the public.

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Final decision

25. I found fault on Mr J’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman