Summary: Mr X complained the Council had not complied with the disability elements of the statutory guidance for the Traffic Management Act when it introduced an Experimental Traffic Regulation Order. We found fault with the Council for failing to liaise and consult with local disability groups when designing its Experimental Traffic Regulation Order. We also found fault with the Council for failing to consider completing an equality assessment and for poor record keeping. The Council agreed to provide a public apology to local disability groups and provide guidance and training to its staff.

The complaint

1. Mr X complained the Council had not complied with the disability elements of the statutory guidance for the Traffic Management Act when the Council introduced an Experimental Traffic Regulation Order.
2. Mr X says this has resulted in the Council reducing parking for disabled people preventing disabled people from being able to access the town.

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The Ombudsman’s role and powers

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. 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. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
6. 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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How I considered this complaint

7. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
8. Mr X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Relevant legislation

9. 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

10. 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.
11. 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. ETROs are also limited to a maximum of 18 months.
12. Regulations 7 and 8 of the 1996 Regulations (imposing publicity and consultation duties) do not apply to ETROs.
13. Under Regulation 6 of the 1996 Regulations, councils should liaise with representative bodies as necessary. The Traffic Management Act 2004 Statutory Guidance states that Public Authorities should seek input from stakeholders during the “design phase” of any scheme, including experimental, temporary and permanent schemes. The Guidance outlines that local disability groups should be consulted “at an early stage of scheme development”.
14. The Guidance also states that in making any changes to their road networks, Public Authorities must ensure that any proposed scheme does not, directly or indirectly, discriminate people with protected characteristics.
15. Regulation 18 imposes a duty on councils to ensure proper signage is in place before an order comes into force and to preserve them.
16. Anyone may challenge the validity of an order in the courts under the RTA 1984. (Paragraphs 35 and 36, Part VI Schedule 9, Road Traffic Act 1984)

Equality Act

17. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
18. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
19. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.
20. 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 (Section 149 of the Equality Act 2010). The ‘protected characteristics’ referred to in the Act include age and disability.
21. 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.
22. 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

23. In November 2020, the Government granted funds to the Council for which it proposed to introduce the Louth Active Travel Scheme, an Experimental Traffic Regulation Order (ETRO).
24. In 2021, the Council opened public engagement for the ETRO from March 2021 to May 2021 and liaised with Local Councillors, local cycle forums and local traders. The Council also liaised with Louth Town Council, East Lindsey district council, emergency services including the police, ambulance and fire and rescue and transport and haulage associations. The Council also approached Age UK.
25. The Council made changes to Mercer Row on 22 March 2022 as part of the ETRO. These changes included removal of space for three cars to park for disabled people.
26. Following feedback from the public about removal of the parking bays, the Council reintroduced part, two cars worth, of the parking for disabled people on Mercer Row from 24 August 2022.
27. Mr X made a Stage 1 complaint to the Council on 26 August 2022. Mr X said:
• The Council was deviating from the Statutory Guidance on disabled parking when implementing the Active Travel Scheme.
• The Active Travel Scheme was impacting him as a disabled person and making it more difficult for him to access shops and businesses.
• The Council should consult local disability groups properly.
• The Council should assess the impact on people with protected characteristics without delay and not wait until the end of the scheme to complete an equality impact assessment.
• The Council should make reasonable adjustments and update the scheme.
28. From the end of August to the end of September 2022, the Council ran surveys about the ETRO for Residents and Visitors and town centre businesses.
29. The Council provided its Stage 1 complaint response to Mr X on 20 September 2022. The Council said:
• It had introduced the scheme as an ETRO which enabled comments to be received during the duration of the ETRO. These comments would inform the decision-making process at the end of the ETRO.
• It made changes within the first six months of the ETRO by reinstating parking on Mercer Row.
• Local disability groups can contact the Council’s Traffic Regulation Orders Team to provide comments on the ETRO.
• It is carrying out an ongoing assessment of the impact of the ETRO on all residents.
30. Mr X sought a Stage 2 complaint response on 6 November 2022. Mr X pointed to recent public meetings about the Active Travel Scheme in which people had voiced concerns about the impact of the scheme on disabled people and businesses. Mr X reiterated his concerns about the Council’s failure to follow the Statutory Guidance or consider the Equality Act.
31. The Council provided its Stage 2 complaint response to Mr X on 11 November 2022. The Council said it maintained its position from the Stage 1 complaint response and would not be escalating Mr X’s complaint to Stage 2. The Council directed Mr X to the Local Government and Social Care Ombudsman (the Ombudsman).

Analysis

Liaising and consulting with disability groups

32. The Council introduced an ETRO so was under no duty to publicise or consult on the scheme before its introduction. However, the 1996 Regulations say a Council “should” liaise with representative bodies as necessary. The Statutory Guidance expands on this to say the Council should seek input from stakeholders during the “design phase” and that Council’s should consult local disability groups “at an early stage of scheme development”.
33. Neither the 1996 Regulations nor the Statutory Guidance puts a statutory duty on the Council to liaise with disability groups or seek input of representative bodies. But there is an expectation the Council “should” do this. The expectation of “should” is the Council would take such actions unless there is a suitable reason not to.
34. The Council has confirmed in its response to the Ombudsman that it did not consult with any local disability groups. The Council has advised it consulted Age UK, but this is not a disability charity.
35. The Council also advised due to the restrictions of the Covid-19 pandemic its engagement was more limited. While we understand that Covid-19 pandemic impacted many services, this should not have prevented the Council from trying to liaise or seek input from any disability groups.
36. The Council also advised specific groups are not easy to find online. The Council has failed to evidence any attempts to find or contact disability groups. Notwithstanding this fault, there are many disability groups based in Lincolnshire that are easy to find online. The Councils Engagement Team have now acknowledged advice that the authority is itself a major source of information on groups with 'protected characteristics', including disability. Failure to contact some disability groups would not be fault. Failing to try to contact any disability groups is fault in respect of the Statutory Guidance.
37. The Council has failed to adhere to the 1996 Regulations and the Statutory Guidance, this was fault.

Equality Act

38. The Equality Act 2010 imposes a duty on the Council to “consider” undertaking an assessment as part of its Public Sector Equality Duty. The Equality Act 2010 also says it is good practice to keep adequate records of its consideration.
39. The Council has advised the Ombudsman it does not have sufficient records to show its consideration of whether to complete an assessment. The Council has failed to adhere to the Equality Act 2010 by failing to keep records of its decision making about the assessment. This was fault.
40. The Council has advised its intention is, on completion of the ETRO, to reflect on the feedback received and before making a permanent Traffic Regulation Order to complete a full impact assessment. This is demonstrative the Council did consider completing an impact assessment but is not a contemporaneous record and does not override the fault identified in paragraph 39.
41. The Equality Act 2010 puts an anticipatory duty on councils to make reasonable adjustments. These reasonable adjustments should make sure a disabled person can use a service as close as it is reasonably possible to get the standard usually offered.
42. In respect of changes to a road system, any change may have an impact on any person whether disabled or non-disabled. The important element for the Council to consider when introducing the ETRO was it would have a disproportionate disadvantage to disabled people in accessing the same services as non-disabled people.
43. As part of the ETRO the Council converted nine parking spaces for use by “blue badge” holders on Market Place. This is slightly over 100ft from the parking spaces on Mercer Row which it removed. The net increase in parking spaces for disabled people is six spaces. While the spaces are not in the same location, and are only available on none-market days, the Council has put in place some mitigation measures. These changes within the ETRO show the Council has considered the potential impact of removal of the Mercer Row spaces and made an anticipatory reasonable adjustment.
44. It is not possible for me to say whether the Council’s actions to introduce these parking bays was sufficient, but the Council has committed to complete a full impact assessment which should consider these changes. Given the Council did attempt to make anticipatory reasonable adjustments I cannot find fault with the Council for this part of the complaint.

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Agreed action

45. Within one month of the Ombudsman’s final decision the Council should:
• Provide a public apology directed at local disability groups for the failure to liaise or consult with them before introduction of the Experimental Traffic Regulation Order.
46. Within three months of the Ombudsman’s final decision the Council should:
• Produce guidance and training to staff about the need to consider liaising and consulting with relevant stakeholders and representative bodies as part of the development of any Traffic Regulation Order.
• Produce guidance and training to staff to staff about the need to consider equality and accessibility issues, including consideration of an assessment, as part of any Traffic Regulation Order.
• Provide training to staff about the importance of record keep about its decisions. This is of particular note when the Council has a duty to make, or consider making, a decision put in place by legislation or Statutory Guidance.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman