The Ombudsman's final decision
Summary: Mr X complained the Council removed a disabled parking bay under a Temporary Traffic Regulation Order (TRO) without properly considering the impact it would have on him and other disabled people. The Council was not at fault because it had due regard to its duties under the Equality Act. The Council will consider all representations to the removal of the parking bays before deciding whether to make the Temporary TRO permanent.
The complaint
Mr X complained the Council removed a disabled parking bay at his nearby shops without proper consideration of the impact the decision would have on him and other disabled people. He said this meant he struggled to use the shopping facilities and frequently had to park a significant distance away.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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) 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)
How I considered this complaint
We spoke to Mr X about his complaint and considered information he provided.
I considered the Council’s response to our enquiry letter.
Mr X and the Council had an opportunity to comment on the draft decision. I considered their comments before making a final decision.
What I found
Relevant law and guidance Equality Act 2010 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. One of those characteristics is disability. The organisations must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty (the Duty).
The Government’s guidance (the Guidance) on the Duty explains that advancing equality of opportunity involves considering the need to: remove or minimise disadvantages suffered by people due to their protected characteristics; meet the needs of people with protected characteristics; and encourage people with protected characteristics to participate in public life or in other activities where their participation is low.
The weight public bodies give to the Duty, compared with other matters, will depend on how much the service area or decision they are considering could affect discrimination, equality of opportunity and good relations, and the extent of any disadvantage that needs to be addressed.
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.
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.
There is no statutory duty under the Equality Act to make provision for disabled parking.
Traffic Regulation Orders If Councils wish to control parking in an area, they must do so using a traffic order (TRO). The procedure for introducing a TRO is set out in the Local Authorities Traffic Orders (Procedure) (England and Wales) Regulations 1996 (‘The Regulations’). Councils also have the power to make a temporary TRO to test the suitability of proposed parking schemes. Temporary TRO’s should last no longer than eighteen months.
What happened Mr X is a wheelchair user who relies on a disabled bay to access his local shops. The shops are arranged in a row along a busy road. Located on the pavement were six standard parking bays and one disabled parking bay.
In September 2021, the Council implemented an up to eighteen month long temporary TRO which removed the disabled parking bay and four of the standard bays outside the shops. The Council's rationale for the temporary TRO was to provide safer access for pedestrians and other road users who were previously impeded by the cars parked on the pavement.
The temporary TRO had a six month consultation period which ended in March 2022. The Council said Mr X is the only person who responded and submitted an objection to the order.
Mr X complained to the Council in September and it responded to say: the TRO had a six month consultation period; it felt nearby parking was sufficient to meet the needs of people who chose to drive to the shops; and the temporary TRO was flexible and it would consider the response to the consultation before making a final decision.
Mr X remained unhappy and escalated his complaint in October 2021. He said the Council was prioritising the needs of non-disabled people and he was now having to compete for parking spaces. He said he felt the Council should have considered converting a bay in the nearby side roads into disabled bays.
The Council replied to Mr X’s complaint in November. It said it had not yet made a decision and would include Mr X’s complaint as a response to the consultation.
The Council’s response to our enquiries The Council said it has removed the parking bays, including one disabled bay as part of an experimental TRO. This was after customer comments following COVID-19 where pedestrians were unable to leave sufficient space between each other on the pavement because the parking bays caused it to narrow. It decided the removal of the bays would benefit all pedestrians including disabled people such as those that use the footway in a wheelchair.
The Council said there are concessions in place for disabled people including three hours of free parking and parking on single and double yellow lines areas where there are no loading restrictions. It said there is availability for disabled people to park in the immediate area along side streets and adjacent road including the use of resident bays.
The Council said it made the changes to balance the needs of all pedestrians and decided there is sufficient parking for disabled people to mitigate the impact.
The Council said it will make the decision around whether to make the TRO permanent by March 2023.
My findings
The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider the organisation followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of how much a complainant disagrees with it.
The Council removed parking bays, including a disabled one under a temporary/experimental TRO. There is no statutory duty under the Equality Act to make provision for disabled parking. The Council considered the impact on removing the disabled parking bay was mitigated due to the availability of other disabled parking in the immediate area. This includes availability in side streets, using single and double yellow lines and using nearby resident bays. Therefore, the Council decided the removal of the disabled bay does not prevent Mr X from using the services or place him a substantial disadvantage because there is other parking provision in the immediate area. The Council had due regard to the Equality Act when it decided to temporarily remove the disabled parking bay so was not at fault.
The Council said it will consider all representations before deciding whether to make the TRO permanent. As this process is ongoing and subject to a statutory process it is not appropriate to comment on the TRO any further.
Final decision
I completed this investigation because I have found no evidence of fault.
Investigator's decision on behalf of the Ombudsman