Summary: Mr C complained about a section of cycle lane and a trip hazard. Mr C said as a person with a disability he could not walk safely along this section of pavement. We have found fault by the Council in the time taken to respond to Mr C’s concerns and a failure to put the matter through its complaint procedure. We consider the agreed action of an apology, offer of a meeting and issuing of complaint handling guidance provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains about a section of cycle lane installed by the Council. Mr C says the Council has failed to properly respond to his concerns the design does not meet relevant specifications and guidance and does not comply with the Equality Act 2010. Mr C further says the Council’s equality impact assessment (EIA) was inadequate and did not properly consider the needs of people with disabilities and other protected groups. Mr C also complains the Council has failed to respond to his report of a trip hazard near this location.
2. Mr C says as a person with a disability who uses a walking stick, he can no longer walk safely along this section of pavement.

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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 significant injustice, or that could cause injustice to others in the future 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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 read the papers provided by Mr C and discussed the complaint with him. I have also considered information from the Council. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Relevant legislation

The Equality Act 2010

8. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
9. The Equality 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. The ‘protected characteristics’ referred to in the Act are:

• age,
• disability,
• gender reassignment,
• marriage and civil partnership,
• pregnancy and maternity,
• race,
• religion or belief,
• sex, and
• sexual orientation.

The Public Sector Equality Duty

10. 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 Act;
• advance equality of opportunity between people who share a protected characteristic and those who do not;
• foster good relations between people who share a protected characteristic and those who do not.
11. The broad purpose of the public sector equality duty is to consider equality and good relations in the day-to-day business and decision-making of public authorities. It requires equality considerations to be reflected in the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.

Key events

12. The following is a summary of key events. It does not include everything that happened.
13. Mr C emailed his local Councillor on 27 April 2023 about the poor design of a cycle lane infrastructure. Mr C explained he had initially raised concerns in November 2022 about a particular stretch of paving but had received a response in December which suggested there were changes planned. Mr C said he had now visited the area and considered little had been done to improve matters for disabled people. Mr C sought a copy of the EIA and raised specific issues with photographic evidence about:

• the design of tactile paving
• the width of the pavement
• a lack of kerbing

14. Mr C emailed again on 30 May as he had not received a response to his earlier contact. Mr C headed this email ‘official complaint’. Mr C noted he had sought advice from the Royal National Institute of Blind People (RNIB) about the section of the cycle lane and they had confirmed his concerns about the design of the tactile paving and also raised issues about the lack of colour contrast between the cycle lane and pavement and the lack of a controlled crossing. Mr C said the design did not meet relevant specifications and guidance or the Equality Act 2010. Mr C also highlighted that he had reported a trip hazard at the same location on 27 April which remained. Mr C provided a photograph of the reported hazard. Mr C asked for the matter to now be treated as a formal complaint. This did not happen.
15. The Councillor responded to Mr C on 19 June and apologised for the delay. This provided a holding reply to say the Council was reviewing the points Mr C had raised. It was noted there was a mix of land ownership at the location and space constraints which meant it may take time to provide a plan to address Mr C’s concerns.
16. Mr C sent a reminder on 31 August for a substantive reply to his complaint about the design of the cycle lane and reported trip hazard and for a copy of the EIA he had requested.
17. Mr C sent a reminder on 8 September and advised he was intending to escalate his complaint to the Ombudsman. Mr C received a same day holding reply.
18. The Councillor responded on 15 September to confirm there were planned changes to the bus stop area and designs were being finalised with works expected to be completed by December. The Councillor also provided a link to the EIA and confirmed they had treated Mr C’s correspondence to date as an enquiry and provided details of how to make a formal complaint. Mr C responded the same day to say he was grateful there would be changes made to the cycling infrastructure although he was concerned about the time taken to reach that point. Mr C also set out his dissatisfaction about the way his complaint had been handled.
19. The Councillor provided a follow up reply to Mr C on 4 October which provided details of the actions taken to address specific issues he had raised. This response sought the exact location of the trip hazard Mr C had reported.
20. The Council has confirmed to the Ombudsman works were completed in December 2023 to provide a wider footway between the cycle track and adjacent buildings. The Council has clarified that these works did not seek to address the specific issues raised by Mr C. The Council says the design of the scheme was informed by a variety of guidance documents and, where possible, the standards set out were adhered to. However, the Council highlighted the guidance documents recognise that space constraints may require a deviation from standards and in these cases the professional judgement of the scheme designers is relied on to balance the competing needs of road users.
21. The Council provided detailed comments to the Ombudsman in relation to each of the specific points raised by Mr C which I set out below. The Council has confirmed it is willing to meet Mr C to discuss this information and explanation further if he would find this helpful.

• In relation to the width of the footway the Council says the previous layout provided a cycle track up to the private/public highway boundary. This left an area of 0.6 metres which was private land and which also provided a buffer for anyone exiting one of the private veranda areas at this point to avoid stepping directly into the cycle track. This 0.6 metre area was perceived as public footway by members of the public. The Council says it has attempted to accommodate this pedestrian movement by widening the area as far as possible. The Council has confirmed the new footway area measures approximately 1.4 metres inclusive of the tactile delineator, and around 1.2 metres without and is over a length of less than 2 metres and widens out owing to the angle of the private building line.
• The Council says the tactile paving provided is intended to guide pedestrians to the recommended footway and bus stop waiting area. By extending the tactile tail to the back of the public footway it is intended to intercept people’s walking path east to west to guide them accordingly. The Council says it would stop the tactile stem a short space from the edge of carriageway on the bus stop island and that it had not been extended onto private land. On the western end of the bus stop area there is a larger area of private land that slopes towards the building line, and the tactile tail is extended up to this point. The Council says it has worked with a local visually impaired user to understand this level gradient is used as a guide to navigate this part of the footway. This gradient guide would therefore lead a visually impaired pedestrian to the tactile paving. The lamp post identified in the photograph provided by Mr C is beyond the crossing point, as the bus stop island tapers out and is not meant to be used as footway. The presence of the lamp column would act as a further deterrent to pedestrians from using this section of the bus stop island.
• In relation to the tactile delineator interruptions from drain and manhole covers the Council says it is not possible to provide a concrete kerb on top of these facilities due to the need to maintain access to utility covers. The Council notes it is common practice to leave gaps for drainage and other obstructions as long as these are not over a long distance and detrimental to the understanding of the tactile intended. In this case there is a longer, straight section where the tactile strip has already advised of the presence of the cycle track and the majority of people will be travelling parallel to it. The short, necessary, gaps are unlikely to significantly alter people’s understanding of the presence and position of the cycle track.

22. Finally, the Council also advised that it considered the trip hazard reported by Mr C was on private land but confirmed it would investigate this further. The Council has now confirmed the trip hazard is on private land and not the public highway. The Council has sought Land Registry information and once this is received it will contact the landowner about the matter.
23. The decision report about the cycle route dated March 2022 attached a copy of the EIA which was produced jointly by Transport for London and the Council and is dated February 2022. The EIA set out the proposed changes, the potential impact on protected characteristic groups and potential mitigations with reasons where these may not be possible and the residual risk. The EIA highlighted the elderly and disabled with specific reference to visually and mobility impaired people, wheelchair users and people with buggies. The impact of new layouts on neurodiverse people, those with dementia and visually impaired people and their guide dogs is also highlighted.

My consideration

24. Mr C raised specific concerns about the design of the cycle way towards the end of April 2023. Mr C made a formal complaint about the failure to provide a reply at the end of May. The Council did not treat the matter as a formal complaint. It was not until mid-September that Mr C was advised the matter had been treated as a Member enquiry rather than a formal complaint and provided with details of how to make such a formal complaint. This is fault.
25. The matter should have been referred to the Council’s complaint procedure at the end of May or at least Mr C should have been advised at that time of the correct avenue to make such a complaint. This will have caused Mr C a degree of inconvenience and frustration. I also consider the delay between the end of April to mid-September in Mr C receiving a response to confirm the Council was proposing changes to the cycle way to address his concerns and in providing a copy of the EIA he had requested was fault. This was compounded by the failure to keep Mr C adequately informed of progress which led to several reminders from Mr C. It is also disappointing the Council did not seek further information about the location of the trip hazard reported by Mr C at the end of April until early October.
26. In reaching my view of the injustice caused to Mr C I have taken into account the response he did receive in September which provided a copy of the EIA he had requested and confirmed changes would be made to the cycle way. This suggested there were issues with the cycle way as installed that required improvement and these could have been arranged sooner but for the delay. However, the Council subsequently clarified that although work was completed in December, it did not address the specific issues Mr C had raised. There has clearly been a miscommunication here.
27. The Council has provided a detailed response about the specific issues raised by Mr C in response to an earlier draft of this statement. This further delay will have added to Mr C’s sense of frustration. I have noted the Council has confirmed it is willing to meet Mr C to discuss the specific issues further once he has considered the information and explanation now provided if he would find this helpful. The Ombudsman would welcome this action given the time taken to reach this point.
28. Mr C has also suggested the EIA relied on by the Council in reaching its decision about the cycle way is inadequate as it did not properly consider the needs of people with disabilities and other protected groups.
29. It is necessary for decision-makers to understand the potential impact of their decisions on people with different protected characteristics and to identify potential mitigating steps to reduce or remove adverse impacts. This should help to ensure that the policy is fully effective for different groups of people. The equality duty does not set out a particular process for assessing impact on equality that public authorities are expected to follow. Having due regard to the aims of the general equality duty is about informed decision-making, not about carrying out particular processes or producing particular documents. However, public authorities may carry out an EIA to assess the impact of a policy or decision on groups with protected character.
30. Where we receive a complaint that an individual with protected characteristics has been unfairly disadvantaged by the introduction or revision to a council’s policy, we will consider whether the council had regard to the public sector equality duty as part of its decision making.
31. I am satisfied the Council had regard to its public sector equality duty when reaching the decision about the cycle way. I acknowledge Mr C considers the EIA is deficient. However, the EIA produced does set out the potential impact of the decision on people with different protected characteristics and identifies potential mitigating steps to reduce or remove adverse impacts as required.

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Agreed action

32. The Council will take the following action to provide a suitable remedy to Mr C:
1. write to Mr C within one month of my final decision to apologise for the delay in providing a substantive response to the concerns he had raised about the cycle way and the trip hazard he had reported and its failure to treat the matter under its complaints procedure;
2. keep Mr C informed of the outcome of its contact with the Land Registry and landowner about the trip hazard he reported;
3. arrange a meeting with Mr C if he wishes to discuss the specific issues he raised after consideration of the information and explanation the Council has now provided within one month of any such request; and
4. issue guidance to Members to ensure complaints are forwarded appropriately or complainants advised about how to make a complaint at the earliest opportunity so that they are dealt with in accordance with the Council’s complaints procedure within three months of my final decision.
33. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have completed my investigation as I have found fault by the Council but consider the agreed action provide a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman