Summary: On behalf of Mr C, Mr R complained the Council had not considered its duties under the Equality Act to cater for deaf members of the public. Mr R also said the Council had failed to deal with his complaints in a timely fashion. We have not found the Council failed to consider its public sector equality duty. However, we have found the Council at fault for not highlighting existing accessible services, or considering whether it could make reasonable adjustments in Mr C’s case. We have also found fault with the Council’s complaint handling. We have made recommendations to remedy the injustice caused. There are parts of Mr R’s complaint we cannot investigate. We have explained why in our statement.

The complaint

1. The complainant, Mr C, is represented by his father, Mr R.
2. On behalf of Mr C, Mr R complains the Council:
1. failed to consider its anticipatory duty under the Equality Act 2010 to cater for deaf members of the public who incurred a Penalty Charge Notice (PCN);
2. failed to deal with representations about Mr C’s PCN in a timely fashion; and
3. failed to respond to complaints in accordance with timescales set out in its complaints procedure.

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What I have and have not investigated

3. I have investigated parts 2a and 2c of Mr R’s complaint.
4. I have not investigated part 2b of Mr R’s complaint. This is because the way the Council dealt with representations about Mr C’s PCN is inextricably linked with matters considered at the Traffic Penalty Tribunal. It was reasonable for Mr C to exercise his right of appeal in this case to challenge the PCN, which he did. I cannot therefore consider a complaint about this.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. 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)
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)
7. 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.
8. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
9. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

10. I considered information Mr R provided to the Ombudsman about this complaint.
11. I considered information the Council provided in response to our enquiries.
12. Mr C, Mr R and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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Relevant legislation, guidance and policies

Clean Air Zone

13. The Council operates a Clean Air Zone (“the Zone”) in the city centre. It is intended to improve air quality by discouraging polluting vehicles from entering it. Cars entering the Zone must pay a fee of £8 allowing access for 24 hours. Payment can be made up to six days before and up to six days after a visit.
14. If a motorist fails to pay the fee, they will be issued with a penalty charge notice, (PCN) requiring them to pay £120. The Council has published guidance for the consideration of representations and cancellation of PCNs issued for the Zone. This states:

• If the fine is paid within 14 days, the rate is discounted to £60.
• Motorists can challenge a PCN informally. If an informal challenge is rejected, they then have 28 days to pay £120 or they can appeal to the Traffic Penalty Tribunal.

Equality Act

15. The Equality Act 2010 (the Act) 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.
16. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Act. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
17. The ‘protected characteristics’ referred to in the Act include disability.

Public sector equality duty

18. The Public Sector Equality Duty, contained in the Act, 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.

19. 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 into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.
20. 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.

Complaint handling

21. The Council’s website says it tries to deal with initial complaints within two days. More complex complaints may take further investigation. In these cases, the Council will inform the complainant and respond within 15 working days.

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What I found

Summary of events

22. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every interaction between parties. Where necessary, I have expanded on some of these events in the analysis section of this decision statement.
23. Mr C is profoundly deaf. His father, Mr R, has represented Mr C in this complaint.
24. Over the course of one weekend in January 2022, Mr C’s car drove through the Council’s Clean Air Zone twice without authorisation. The Council issued two PCNs. Mr C paid the first fine immediately at the discounted rate.
25. When Mr C received a second notification, he and Mr R believed that this may have been a duplicate PCN sent in error. Mr R helped Mr C write a representation asking the Council to withdraw the second PCN on compassionate grounds, which they sent in early February 2022.
26. The Council issued a notice of rejection of Mr C’s appeal in April 2022. This told Mr C that he had 28 days to pay the full £120 penalty or appeal to the Traffic Penalty Tribunal. It said if he did not pay by 29 April 2022, the matter would be sent to enforcement and the penalty would rise to £180.
27. Mr R wrote to the Council on 6 April 2022. He said Mr C was disabled and had found the PCN very distressing. He said it had taken over seven weeks for the Council to respond to his representation. This meant Mr C had lost the chance to pay the discounted rate. He enclosed a cheque for £60 and said the Council had seven days to respond to his letter. Mr R says he also wrote to the Council on 15 April 2022.
28. Mr R says he contacted the Council by phone on 21 April 2022. He says he spoke to an officer and explained the facts, but was then cut off. He says he phoned again and spoke to another officer, who said his letters had been received but had only just been put onto the system and so no action had been taken. He says the officer asked to speak to Mr C. Mr R says he explained that Mr C was profoundly deaf and therefore could not talk on the phone. The officer then said he could not speak to Mr R and suggested he should send another letter.
29. Mr R says he had no confidence that this would result in a response by 29 April, given the delays there had already been. The officer then said he could deal with the case, as the evidence showed Mr R was involved and had Mr C’s consent. Mr R says the officer asked him to call back on 25 April 2022.
30. Mr R says he called again on 25 April 2022. He spoke to another officer who said he could not discuss Mr C’s case with him. Mr R says the call lasted for over half an hour. The officer said Mr R should upload a letter signed by Mr C which would authorise him to speak on his behalf.
31. Mr R says that he had no faith the Council would be able to deal with the matter, so he cancelled his £60 cheque and paid the full £120 on the 26 April 2022. He intended to complain about the Council’s failure to deal with the matter speedily and fairly.
32. Mr C appealed to the Traffic Penalty Tribunal on the 27 April 2022.
33. Mr R complained formally to the Council on 3 May 2022. He set out several questions about the Council’s handling of the PCN, his complaint, and whether it had considered equality legislation in its actions.
34. The Traffic Penalty Tribunal wrote to Mr C in May 2022 and told him the Council had not contested the appeal. It said:

“The Council is adopting a policy to enforce the first PCN that hits the mat, so enforcing the first case and writing off others in the relevant time frame, but then enforcing others after the first PCN has been received and the motorist has been made aware, Therefore, in this instance the Council wish to exercise discretion of [the second PCN]”.

35. Mr R wrote to the Council again on 23 May 2022. He said he had still received no response to his first letter. He also asked why, if the Council had a policy of only enforcing one PCN, it had not told him this. He asked for a response to his letter and his returned cheque for £120 within seven days.
36. Mr R wrote to the Council again on 13 June saying he had still not received a response to his complaint. He said he intended to complain to the Ombudsman.
37. On the 15 June, Mr R wrote to the Council again, saying he had received no reply to his letter of complaint. The Council acknowledged receipt of Mr R’s complaint on the 16 June.
38. The Council says it processed a refund of £120 on the 7 July 2022.
39. On the 11 July, Mr R wrote to the Council. Mr R said it had been 19 days since the Council acknowledged his complaint. Mr R said he had not received a reply, nor any reason for the delay. The Council acknowledged receipt of Mr R’s email and apologised for the delay.
40. On the 13 September 2022, the Council responded to Mr R’s complaint. The Council:
1. apologised for the delay in responding, saying this was due to an increased workload.
2. said it could not speak to Mr R about Mr C’s PCN without authorisation from Mr C, which it could not have accepted over the telephone. It said this authorisation was later provided online. The Council said it needed this consent irrespective of disability.
3. said there were two Clean Air Zone PCNs issued for the 22 and 23 January 2022. The first had been paid at the discounted rate and Mr C had made a representation about the second.
4. said the matter went to appeal, where the Council decided to cancel the PCN and refund the money already paid.
41. Replying to the Council, Mr R said the complaint response did not answer the questions he had asked about the Council’s services for deaf individuals. He said he wanted the Council to provide a response to these questions.
42. Mr R referred his complaint to the Ombudsman.

Analysis

Public sector equality duty

43. Responding to our enquiries, the Council provided evidence of the policies it has developed in order to meet its public sector equality duty. The Council publishes equality objectives on its website. These set out its aims and how it monitors performance. These measures include promoting engagement with service users and staff in several different ways. The Council has also committed to carrying out equality impact assessments on all decisions affecting service users and the wider community.
44. We asked how the Council could show it had considered its anticipatory duty for deaf service users who incur PCNs. The Council provided details of its video sign service, which can be used by deaf service users on any Council telephone line.
45. I am satisfied the Council has considered its public sector equality duty generally. It has set out clear goals and ways to monitor performance. It has introduced a commitment to conducting regular equality impact assessments to review and improve services. I have not therefore found the Council at fault for failing to consider its public sector equality duty.

Mr C and Mr R’s experience

46. Mr C and Mr R’s experience suggests that Council officers are not uniformly aware of the services the Council has designed to meet its anticipatory duty to make reasonable adjustments. It also appears that officers are not consistently considering what reasonable adjustments the Council can make to remove barriers to its services for individuals.
47. When referring the matter to the Ombudsman, Mr R set out questions the Council had not answered. These were questions put to the Council in Mr R’s original complaint. Some of these questions were relevant to how the Council made services accessible for deaf service users. I have summarised these questions, and the Council’s responses to my enquiries, as follows:
1. Mr R queried why the Council had been reluctant to speak to him when he contacted it on Mr C’s behalf. He said this ran counter to equality legislation, given Mr C could not converse by phone. The Council told me it had no record of Mr R’s first call. It said it would have needed written consent from Mr C to speak to Mr R, under the principles of GDPR.
2. Mr R had asked why the video sign service could not be used by those dealing with PCNs. The Council told me the service could be used against any Council telephone line, but accepted the service was not clearly signposted. It said it would review its contact options to make sure it clearly highlighted accessible services.
3. Mr R had asked whether the Council provided deaf awareness training to its officers. The Council told me it did not provide specific deaf awareness training, but it delivered training on disability awareness. It said its contact centre staff were aware of the video sign service.
48. The Council said its officers are aware of the video sign service; however, Mr R’s account shows he was not told about it during his calls with the Council. The Council has told me there is no recording of Mr R’s call and therefore no objective record of what Mr R was told. I accept this is the case. However, as set out in paragraph 9, the Ombudsman makes decisions on a balance of probabilities where possible, in circumstances where evidence is contradictory or incomplete.
49. On balance, I believe the account Mr R set out in his complaint to be credible. I note the Council did not address Mr R’s questions about its services for deaf service users, or mention available reasonable adjustments, when it responded to his complaint. It instead focused on its need to secure written consent for Mr R to act as Mr C’s representative, irrespective of Mr C’s disability. This is consistent with the experience Mr R described in his complaint. The Council did not address Mr R’s wider concerns until the Ombudsman asked about them.
50. I therefore find the Council at fault for not making Mr C and Mr R aware of existing services, or considering whether it could or should have offered any other reasonable adjustments in this case.
51. This fault caused Mr C and Mr R an injustice. Mr C was denied an opportunity to engage with the Council directly about this matter, should he have wished to, though this was mitigated by Mr R acting as his representative. Mr R was put to unnecessary time and trouble in pursuit of clarification and resolution on this point. Early signposting could have mitigated or entirely removed the need for Mr R to approach the Ombudsman.
52. If the Council is approaching reasonable adjustments in an inconsistent way, this may also affect access to services for other individuals, beyond the events considered in this complaint. This has not been addressed in the Council’s responses. It is in the public interest for the Council to ensure it is providing consistent guidance to service users about the accessible services available, and that its officers are fully informed about these services.
53. I recognise the Council has accepted its video sign service is not well publicised and has said it will address this. I commend the Council on taking this step and consider this offers partial redress for the injustice caused. I will include this with my recommendations and the Ombudsman will seek evidence of the Council’s actions. However, I am of the view Mr R’s avoidable time and trouble has not been adequately addressed. I also believe the Council has not properly recognised the potential missed opportunity for Mr C to engage directly.
54. The Council is correct to be mindful of its general duties under GDPR. It is not fault for the Council to seek consent from an individual to discuss personal data with a third-party. However, Mr R received inconsistent information as to how he and Mr C should provide this consent, resulting in avoidable frustration and time and trouble. I have found the Council at fault for its communication with Mr R about this.

Complaint handling

55. The Council agreed it had not responded to Mr R’s complaint within its publicised timescales. I recognise the Council accepted this. I also note the Council did not fully address the specific points Mr R made in his complaint. I have found the Council at fault for its complaint handling in this case.
56. I believe these faults caused Mr R and Mr C an injustice. Had the Council responded to Mr R’s complaint in a timely way, addressing the substance of Mr C and Mr R’s concerns in full, this may have mitigated the need for Mr R to bring the complaint to the Ombudsman. Mr R has therefore been put to unnecessary time and trouble.

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Agreed action

57. I have considered the Ombudsman’s Guidance on Remedies when making the following recommendations.
58. Within four weeks of the final decision being issued, the Council has agreed to:
1. Apologise in writing to Mr C and Mr R for the faults and injustice identified in this statement. When doing so, the Council should have regard to the Ombudsman’s guidance on “Making an effective apology”, set out in our Guidance on Remedies.
2. Pay Mr R £100 in recognition of the avoidable time and trouble incurred in pursuing a resolution to his complaint;
3. Remind relevant officers of the Council’s duty to consider what reasonable adjustments it can make for individuals who may face barriers to accessing its services;
4. Remind relevant officers of the accessible contact options the Council has in place; and
5. Take steps to ensure its video sign service is clearly signposted for service users who may need it.
59. The Council should provide us with evidence it has complied with the above actions.

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Final decision

60. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman