The Ombudsman's final decision
Summary: There was no fault in how the Council developed and implemented a clean air zone (CAZ). It properly considered its equalities duties when it dealt with Ms B’s issues regarding the CAZ. The Council clarified some confusion regarding how Ms B should contact it about the CAZ, and is working to improve how it handles complex communications. But there is no clear fault in its communications and no basis for me to suggest it does more in this regard.
The complaint
Ms B complains about how the Council has handled matters relating to penalty charges notices (PCNs), her exemption from incurring penalties for driving in the clear air zone (CAZ), and reasonable adjustments to take account of her disability.
Ms B also complains that the Council mishandled her communication with it.
Ms B says the Council’s shortcomings has caused her distress and frustration and means she has been sent several parking tickets.
The Ombudsman’s role and powers
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) 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) We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.
How I considered this complaint
I considered the information provided by Mr B, including the voice recordings of her dealings with the Council, and I discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement.
What I found
The law and guidance The Equality Act 2010 protects the rights of individuals and supports 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.
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 include disability.
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.
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.
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.
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.
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.
The broad purpose of the public sector equality duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.
There is no set process for a council to assess the impact of a policy or decision on a group of people with protected characteristics. However, councils may carry out an equality impacts assessment to do this. This is assessment analyses evidence to understand the impact or likely impact of a council’s policy on equality.
What happened The Government mandated the Council to introduce a CAZ to reduce pollution in the city. The CAZ means that the highest polluting vehicles are charged to enter the zone. A driver can pay the charge in a specified time frame, and failure to do so may result in a PCN. The scheme includes financial help for people to replace a higher polluting vehicle with a compliant one. It also includes an exemption from CAZ charging for those with disabilities if they have a blue badge, although the driver still has to log those journeys to avoid the charge.
The Council consulted residents and businesses in 2018 and 2019. The detailed consultation shaped the Equalities Impact Assessment, which the Council continued to update throughout the development and implementation of the scheme.
Ms B has a combination of disabilities, and physical and mental illness, which means that amongst other issues, she has chronic pain and fatigue, and at times, she cannot perform everyday tasks or administration. In addition, Ms B’s income is limited. Ms B drives a van which is classed as a higher polluting vehicle and so her journeys are chargeable under the CAZ scheme.
The Council said that Ms B raised the impact of the scheme on her and other disabled people, and it tried to engage with her to encourage her to upgrade her vehicle using a grant payment or an interest free loan. However, Ms B decided she could not take up this offer.
In March 2021, the Council agreed that Ms B would be exempt from CAZ charges while she made an application for a blue badge. During this time Ms B would not need to log her journeys. The Council’s emails to Ms B about this are clear that it was granting an exemption for 12 weeks only while she applied for a blue badge, and it set out the dates the exemption would apply for. It said that if Ms B’s blue badge application was still pending when the exemption expired, it may be able to extend the exemption period. The Council understood from various interactions in March 2021, that Ms B had applied for the blue badge. However, in May the Council realised that Ms B had not made an application for a blue badge, and it reminded her that applications can take up to 12 weeks to process.
The exemption period expired on 12 June and the Council received Ms B’s blue badge application on the same day. I understand that Ms B did not ask the Council for more time to make the application before the exemption period expired. Ms B started to incur charges and the Council considered whether to reinstate the exemption while she waited for the blue badge application to be decided. The Council decided that it could not extend the exemption period because granting it was an exceptional measure and other disabled users were going through the same process without the benefit of a one-off exemption.
Ms B continued to make journeys in the CAZ. As I understand it, these were necessary to see her family, and to get to work. Ms B did not pay all of the charges and so she was issued with PCNs.
The Council asked Ms B for more information for her blue badge application and Ms B asked it again about outstanding PCNs, the Council replied and again asked her for the information it needed. The Council notes that it also altered its process so that Ms B could apply for the exemption despite that she did not have the correct vehicle documents as these were being updated by the DVLA.
The Council granted Ms B the blue badge. This means that she does not have to pay to enter the CAZ, but she must log her journeys. Ms B has explained to the Council that this is very difficult as she is often exhausted and in pain, and she finds it hard to concentrate sufficiently to make sure she has logged all the journeys. She asked the Council why it could not use its automatic number plate system to automatically log her journeys and not send her a PCN. The Council explained that a blue badge only entitles a disabled person to the exemption and not the car. The disabled person is asked to log the journey to show that they were driving or traveling in the car at that time.
The Council considers that the scheme takes the impact of disability into account by allowing the journey to be logged up to six days before or afterwards. The Council has offered to speak with Ms B about any difficulties she had with the system so that it could consider any further reasonable adjustments that might be appropriate.
The Council says that as of 22 June 2022, Ms B had received 11 PCNs and she can appeal these on limited grounds. Four of the PCNs have been reduced on appeal to the normal daily charge of £9. Ms B complained about two PCNs and the staff logged this as an appeal (as appeals are generally time sensitive). Ms B made it clear that she had not consented to making an appeal and so the Council cancelled these. The Council agreed to hold enforcement action on any existing or further PCNs pending the outcome of my investigation. This does mean that Ms B may receive several PCNs at once, where she has not been able to log the details of her journey and claim an exemption.
Ms B has made it clear that she is complaining not just on behalf of herself, but also on behalf of others that might be affected by the Council’s CAZ. In response to this the Council has pointed to its Equality Impact Assessment. It has kept this under review and has updated it periodically, as it captures more information and feedback about the impact and potential impacts of the scheme. The Council explained that it had met with an independent equalities forum, a wide range of stakeholders and the general public to inform the Assessment. The Council used direct mail to all households on three occasions, used targeted telemarketing sessions and face to face events. It noted that the Assessment is publicly available for people to comment on. The Council noted Ms B’s concern that those with a vested interest may disproportionately push elements of the scheme. The Council explained that it takes a proportionate approach to consultation submissions and will make checks when multiple similar submissions are made.
Ms B complained to the Council. She asked it to address a number of issues, primarily the impact of the CAZ on disabled people. The Council met with Ms B (online) to discuss the issues, and Ms B asked the Council to continue its dealings with her in writing. The Council addressed the issues raised by Ms B which included information about the financing, aims and development of the CAZ; the processes followed; the equalities impact assessments; and exemptions for disabled people in higher polluting vehicles. The Council answered each point and provided links to the relevant parts of its website so that Ms B could see where the information had come from.
The Council says it has invested considerable time and effort into responding to Ms B’s numerous queries. Following its response to Ms B’s formal complaint, the Council found that a number of officers were becoming involved and so it asked for Ms B to use a single point of contact for any correspondence about the CAZ and parking, a senior officer in its Parking Services.
Ms B found that at times when she contacted the Council on this or other issues, the Council’s contact centre referred to her single point of contact, despite that the Council had only intended that the officer deal with CAZ and parking issues. This caused Ms B confusion, frustration and distress. The Council clarified in writing with Ms B and its staff that the single point of contact was only for the CAZ issues. The Chief Executive’s email to staff says that “…all members of the team must recognise the requirement to maintain an open mind about legitimate access to services for Ms [B]. Any call about matters not related to the above should be triaged to the appropriate service.” It has apologised for getting this wrong, and is working with the contact centre on how to handle complex issues so that these problems do not recur.
Overall, the Council says it will continue to seek to manage the relationship between the Council and Ms B positively, but must take into account the impact on staff and resources when Ms B makes multiple demands on staff time. The Council says it has taken into account Ms B’s disability and made reasonable adjustments in its dealings with her.
Was there fault by the Council causing Ms B injustice?
The CAZ and exemptions I appreciate that Ms B’s disabilities impact on her ability to handle the impact of the CAZ. However, there was no fault in how the Council dealt with the CAZ charges. It considered Ms B’s individual needs and granted an exemption to allow her time to apply for a blue badge. It offered to help with the blue badge application and it changed its process in this instance, to allow the application despite that the vehicle documents were not correct.
The Council’s equalities duties We cannot decide if an organisation has breached its equalities duties. My task is to establish whether the Council has properly engaged with these, and provided that it can show this, I cannot criticise the decisions it has made with regard to these duties.
I can see that Ms B’s disabilities make it more difficult for her to accurately log her journeys and claim her exemption from the CAZ charge, and that to exempt Ms B’s vehicle without her having to do this would better meet her needs. However, the Council has explained that it cannot do this because the person is exempt and not the vehicle. Instead, the Council has offered to discuss how it might make logging journeys easier for Ms B. The Council has properly taken account of Ms B’s equality rights. More broadly, the Council has completed and kept under review its Equality Impact Assessments, and so it has considered how the CAZ impacts on other disabled people.
The Council’s communication with Ms B I have looked at how the Council has corresponded with Ms B with regard to the CAZ and her blue badge application. The Council decided it would ask Ms B to direct all correspondence via a single point of contact. This officer has appropriate seniority in the relevant department, and so it was not fault for the Council to do this. The Council did cause confusion and distress when it appeared to imply to Ms B that the single point of contact applied to all issues she might raise with the Council. However any fault here is not clear and, as the Council has clarified this with Ms B and its contact centre, and is reviewing how it might improve its service so as to avoid further confusion and distress, there is no basis for me to make any further recommendations here.
Final decision
I have completed my investigation. There was no fault by the Council.
Investigator's decision on behalf of the Ombudsman