The Ombudsman's final decision
Summary: The Council gave Ms B confusing information about whether she could make a formal objection to a neighbourhood improvement scheme, and it did not always correctly handle its communication with her. However, I am persuaded that the Council has taken Ms B’s needs into account within its consultation process, and it has offered to meet with her to discuss her outstanding concerns.
The complaint
Ms B complains that the Council: wrongly prevented Ms B from making a formal objection to a liveable neighbourhood consultation; and did not always respond properly to Ms B’s contact about this issue and her request that it sends her information in accessible formats. It did not take account of its equality duties, either towards Ms B or other disabled people,.
Ms B tells me that the Council’s shortcomings have caused her distress and frustration.
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.
How I considered this complaint
I considered the information provided by Ms B, including her audio recordings of telephone calls to the Council, and I have 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. I have taken account of the comments received.
What I found
The law 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 Council’s Liveable Neighbourhoods project will reconsider how road space is used, to combat climate change and to improve the health and wellbeing of residents. Following consultation, the Council identified 15 priority areas for phase one of the project.
The Council appointed consultants and between November 2021 and January 2022, the Council and the consultants invited the public to submit comments on what they liked and disliked about the 15 selected areas. This was an early consultation. The Council was not at this stage proposing a specific scheme which meant there was no way to formally object to this. Later in 2022, there were workshops with key stakeholders from which the Council would determine potential measures.
During this early consultation stage, Ms B raised concerns about the potential impact on her accessibility to neighbourhood facilities. Specifically, Ms B raised that disabled drivers may be required to drive further if vehicle access to areas is restricted, this will make it more expensive for disabled drivers on low incomes, and may mean they incur charges.
Ms B also raised concerns about how the consultation was conducted. Ms B said that the Council had invited people to add comments to an online map, but she could not work this on her mobile phone. The Council told her that she could submit her comments by email, but then redirected her to the map or gave the option of sending her comments by post. The Council then told Ms B that she could give feedback by email, at a face-to-face event, or by post. The Council also at that stage explained that it was not a formal consultation process but a ‘preliminary round of engagement’.
Ms B raised that the Council had held consultation outside during the winter months and this put off people engaging with it. Ms B asked the Council to extend the consultation period to allow disabled people to respond and the Council agreed.
Ms B asked to make a formal objection to the scheme. Initially, the Council told Ms B that she could not formally object or make a complaint about the scheme, because it is a partnership project. The Council then told Ms B that it would take her comments as her formal objection. It took around one month from Ms B raising her concerns, for the Council to clarify in an email from the Chief Executive that she could not make a formal objection because there had been no detailed proposal yet, and that she could instead make a formal complaint.
Ms B continued to contact the Council, raising concerns and asking to make a formal objection and said that she did not want to make a complaint. The Council responded that the next stage would be the co-design process which would involve sessions with residents and other key stakeholders, and that it would invite her to these. The Council sent Ms B a link to the Equalities Impact Assessment (EqIA) which set out several ways the co-design process would be made more accessible. It also explained that there would be a further consultation so that as many people as possible could contribute to the project, and a separate assessment for each of the final liveable neighbourhood schemes, and as such accessibility would be properly addressed.
Ms B continued to ask to make a formal objection. The Council clarified again that Ms B could not make a formal objection and had to make a complaint. It decided to log Ms B’s concerns about the project and how the consultation had been run so far, as a complaint.
In the course of their correspondence, Ms B had also complained that it was not clear whether the Council had added her comments made by email. She had raised that the data and information the Council had used to inform the consultation did not take account of the lives and needs of disabled people, so that the outcomes would be skewed towards able bodied people.
As part of the consultation, the Council gave its contact centre telephone number for the public to request information in a different format, make a comment or request a call back. Ms B telephoned, but was told that as the liveable neighbourhoods project was being run by a partnership, it could not connect her with someone to speak with or take a message to call her back. The Council has acknowledged that there may have been a misunderstanding and it wrote to the contact centre staff to clarify that residents can complain about the project.
The Council responded to Ms B’s complaint. It said that the Council had explained that it had wrongly advised her, and she could make a complaint but not a formal objection at this stage. The Council promised to investigate why it had wrongly advised Ms B, but told her that it was appropriate for calls to be directed to its contact centre rather than to offer a direct telephone number as it was being overseen by a partnership. It also invited Ms B to attend the office to go over the process with her and to discuss any issues she might have in accessing this. It assured her that it had noted her concerns about the scheme, but had dealt separately with her complaint about how the consultation had been run.
Ms B said she could not go to the office because she could not afford the cost of doing so (she would need to pay a clean air zone charge). The Council offered to visit Ms B at home to discuss the consultation. The Council has continued to correspond with Ms B by email.
Ms B has sent me recordings of some of her telephone calls with the Council’s contact centre in which she asks to speak to someone in the Equalities team. Sometimes she is put through but the line disconnects, and sometimes the centre takes a message to call her back. Ms B says the Council does not call her back. Overall, Ms B says the Council’s communication with her has been very poor, and the Council is not meeting its equalities duties.
The Council says that as of 14 December 2021 it had not received any call back requests and it asked Ms B to email her requests instead. In response to my investigation, the Council has explained that it did engage with Ms B in response to her specific responses. The Council’s equalities staff met with Ms B online, and followed up that meeting with a detailed letter. The Council has also invited Ms B to take part in its Independent Equality Advisory Group and also focus groups that took place as part of its security consultation.
Ms B attended a workshop in her local area. She feels that she was very badly treated there. Ms B tells me the Council’s actions left her distressed. Ms B says officers there told her that she should only mention positive aspects of the schemes, and one had rolled her eyes when Ms B was speaking. The Council has given an account of the workshop. It accepts that there was a dynamic between Ms B and another attendee, and staff worked hard to make time for all views and to reassure Ms B. The Council says it later took Ms B away from the group and discussed her views with her individually so as to better understand these.
Ms B also asked the Council to provide information about the project in accessible formats so that she could help disabled people that she works with, as well as friends and family, to engage with the consultation. Ms B says the Council would not give her information in accessible formats and she continued to contact it to get this, but found these contacts difficult, unproductive, and distressing.
The Council has explained to me that that although Ms B was asking about specific formats such as braille or easy read, it had understood that these were general requests and not made on behalf of an organisation or individual. The Council has explained that it did meet Ms B’s specific requests in the most recent consultation work (May to July 2022). It provided simple versions of reports, and accessible maps in line with government advice.
The correspondence between the Council and Ms B in May and June 2022, shows that it asked her for the details of those who needed information in a more accessible format so that it could send it. It also said it would give information in a different format to any organisation on request. Ms B pointed out that she had requested this some months ago but would pass it on to the manager of the organisation she works for. The Council continued to correspond with the organisation on this matter instead of Ms B.
In terms of the general public, the Council says that it provided details of the project online, in hard copy, and at in-person events. The earliest consultations were during COVID-19 restrictions and so the Council held some consultation sessions outside in-person and some virtually. At these events, the Council recorded the comments and feedback and added them to the comments submitted online. The Council said that it considered mobility accessibility requirements when choosing the venues. The Council has explained that the public could request hard copy response forms by telephone or email. It could also submit comments in person, using an online questionnaire, submitting a free-form online response, by contacting the helpline or using a dedicated email address.
The Council did not respond to Ms B’s concerns about how the Council took account of disabled people in the data it used for the consultation. In response to my investigation, the Council has explained how it gathered data to inform the consultation on the priority areas. The Council’s project team consulted the Independent Equalities Advisory Group. The Council then developed, and kept under review an Equalities Impact Assessment (EqIA) that considers the impact on various communities. The Council also commissioned an organisation to provide additional support to make sure easily overlooked communities, such as younger and older people, disabled people, parents of young children and ethnic minority groups. The Council invited people from harder to reach groups to attend the workshops so that their experience could inform the overall picture.
Was there fault by the Council?
I appreciate that the Council has sometimes found it challenging to deal with the issues that Ms B raises. I can see from the correspondence that it has responded to Ms B within a reasonable timeframe. However, it was not clear about whether she could formally object or how she could make a complaint, and it took around one month to clarify this. I appreciate that once the Council had clarified the process available to Ms B, she continued to ask to formally object. However, this was partly because the Council had previously told her that it had accepted her formal objection, and so I can understand why Ms B remained confused about the process.
In addition, although the Council often gave Ms B detailed responses, it appears that it did not always address all the points she raised, or explain why it would not address these. For example, it did not address Ms B’s concerns about how it gathered its data to make sure that this took account of disabled people (or explained why it would not respond to her on this point). However, an appropriately senior officer has offered to meet with Ms B to discuss any outstanding concerns. Ms B has decided not to do so and it is open to her to refuse a face-to-face meeting if she feels this does not meet her needs. Ms B has more recently raised some fresh concerns. We would expect the Council to continue to address Ms B’s concerns, but it might want to consider how it does so to make best use of its resources.
Although Ms B wants the Council to give a direct line to equalities staff, it is for the Council to organise how the public can contact its officers. The Council also gave Ms B the option of emailing it. Having said that, it is clear that Ms B has experienced difficulties with being put through to the correct teams and receiving call backs from them in response to requests. Presumably, it is a technical problem, but a connection should not be terminated without explanation. The Council says that it had not received requests for it to call Ms B, but I have no reason to disbelieve Ms B and the audio recordings support that she made these requests. If the Council cannot respond to these, then it should manage the expectations of the pubic in the level or means of contact they can expect in response to requests, and ensure that it has engaged its equalities duties. The Council’s shortcomings have caused Ms B frustration and distress.
Aside from the technical difficulties with contact, and the confusion over whether Ms B could make a formal objection, I am persuaded that the Council has tried to properly and meaningfully engage with Ms B. It has responded to her at a senior level and has sought to include her in the consultation processes, as well as meet with her individually in a way that best suits her to better understand what she needs in order to engage.
I accept that Ms B feels she was very badly treated at the public meeting, and I have no reason to disbelieve her account of this experience. The Council has explained how its staff tried to manage the meeting so as to capture Ms B’s views as well as others there. I cannot make a finding of fault here because I cannot establish what happened with any certainty.
The Council was prepared to provide information on the project and collect views in accessible ways. It was reasonable for it to ask for the details of those that needed this (with their consent) and once Ms B explained that she was asking on behalf of an organisation (which was not clear from her original emails), the Council dealt with the manager. I can see that this was upsetting for Ms B, but it was open to the Council to do that and it was not administrative fault.
Ms B was right to raise that if data is not collected and used with the lives and experiences of disabled people in mind, there is a risk that this will be skewed towards the experiences of able-bodied people. The Council did not specifically address this point in its responses to Ms B. However, the Council has explained how its EqIA and the measures it has taken as a result of that, have taken account of how to gather this type of information from disabled people and hard to reach groups. The Council has given this aspect proper and detailed consideration, and so although it did not expressly explain this to Ms B, it has addressed the subject matter of her concerns in its consultations.
In summary: The Council gave confusing information about whether Ms B could submit a formal objection or a complaint, and its communications were not always correctly handled. It is open to the Council however not to give a direct line to particular officers and direct the public to its contact centre.
The Council responded to Ms B’s concerns in detail and offered to meet with her to discuss any outstanding issues, but it did not always address all of her concerns or explain why it could not.
The Council has however offered to meet with Ms B and should continue to respond to new issues that she raises. The Council will need to decide how it handles communications with Ms B, taking into account what reasonable adjustments might be appropriate.
The Council has offered to provide information in accessible formats and it is not fault for the Council to ask for the details of those that need this (with their consent), or to deal with Ms B’s organisation directly.
Although the Council did not explain how it had taken account of bias in collecting the initial data, I am persuaded that it has taken account of the issues in how it has run the consultations.
I cannot make a finding about what happened at the public meeting.
Overall, the Council has taken into account Ms B’s rights and its equalities duties.
Agreed action
The Council should within one month of the date of this decision show the Ombudsman that it has apologised to Ms B for its shortcomings listed above.
Final decision
I have completed my investigation. There was fault by the Council causing Ms B injustice and it should take the recommended action.
Investigator's decision on behalf of the Ombudsman