Summary: Mx X complained about transphobia, misgendering and harassment by the Council’s civil enforcement officers (CEOs), and further misgendering when they appealed a Penalty Charge Notice (PCN). We found no fault with the way in which the Council investigated the actions of its CEOs. We found that Mx X was misgendered once during the PCN appeals process. We concluded that the Council had already remedied the injustice caused by this fault.

The complaint

1. Mx X complained about transphobia, misgendering and harassment by the Council’s civil enforcement officers (CEOs), and further misgendering when they appealed a Penalty Charge Notice (PCN).
2. They also say during complaint-handling the Council:

• Continued to misgender them
• Wrongly attributed repeated errors to oversight;
• Selectively reviewed the evidence with a bias towards its agents;
• Dismissed their concerns about equality and diversity;
• Repeatedly, and intentionally, failed to include information on how to escalate their complaint at each stage of the complaints procedure

3. They say the matter caused them significant distress as a transgender person. They want the Council to apologise, correct its records to reflect their preferred title “Mx”, consider all evidence (including witness statements) in future cases, review its complaint handling processes, provide them with copies of its equality and diversity policy, and train its staff in equality, diversity and inclusion.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
5. 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).
6. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. 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)
8. 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.

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How I considered this complaint

9. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what the organisation did.
10. On the broader point, we cannot always respond to complaints in the level of detail people might want. We have limited resources and must investigate complaints in a proportionate manner, focusing on general themes and issues, rather than providing a response to every individual issue raised in a complaint.
11. 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 it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether the complainant disagrees with the decision the organisation made.
12. I have:

• considered Mx X’s written complaint and supporting papers;
• talked to Mx X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint; and
• viewed the Body Worn Device [i.e. bodycam] CCTV footage of the first event complained about.

13. Mx X 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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What I found

Legal and administrative background

The Equality Act

14. 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.
15. 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.
16. 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

17. 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; and
• foster good relations between people who share a protected characteristic and those who do not.
18. 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.

What happened

19. Mx X describes themselves as a transgender individual, who prefers to be addressed by the gender-neutral title “Mx”.
20. The first incident occurred when a CEO issued Mx X with a PCN for parking in a Goods Vehicle Loading Only bay. After that, there was a series of interactions between Mx X and two CEOs. Mx X felt the CEOs were acting in a homophobic and transphobic manner, and following and harassing them, and complained to the Council about this.
21. The Council investigated and responded to Mx X's complaints under both stages of its complaints process. The Council found no evidence the CEOs had acted in a discriminatory manner, but provided:

• An apology for misspelling Mx X’s name, and failing to use their preferred title;
• A recognition that “an awareness of prefixes is something should be picked up in the council’s complaints handling to staff in future training”; and
• An acknowledgement that the Stage 1 response should have included confirmation that the evidence provided by Mx X had also been reviewed as part of the investigation.

22. Mx X later wrote to the Council’s Head of Communications, Strategy and Policy, who had supervised the investigation of their former complaints. Mx X said they had appealed the PCN issued during the first incident. The response from the Council, rejecting their appeal, had addressed them as “Ms”. Mx X said that this misgendering had happened under the supervision of the Head of Communications, Strategy and Policy.
23. The Head of Communications, Strategy and Policy responded to Mx X. This letter included:
• The letter from the parking team did refer to Mx X as “Ms”.
• The software used to generate the letter templates relied upon information that had been input by the user (i.e. Mx X) making the appeal. In this case, Mx X had selected “Ms” from the drop-down list of available titles.
• The member of the parking team who responded to the appeal was not involved with Mx X’s previous complaints and so would have been unaware of the need to change the title on the letter.
• The gender-neutral option “Mx” was not available on the drop-down list of titles on the PCN appeal system. He apologised for this, and suggested that he would recommend that the title drop-down be removed from the PCN appeal system entirely, as someone’s title has no bearing on the PCN challenge process.
24. Mx X responded saying that their preferred title was known to the Council and that, whilst they understood that occasional mistakes may occur, this “consistent misgendering” felt “deliberate and discriminatory”, suggesting “a systemic issue within the Council that needs to be addressed urgently.”

My findings

25. I shall consider first the steps taken by the Council to investigate the two incidents involving the two CEOs. I find that the Council conducted a detailed investigation to inform its complaint responses, including taking statements from both CEOs and reviewing objective evidence including the Body Worn Device footage and the GPS mapping file which tracked the CEO’s movements. It also considered evidence provided by the complainant, including photo and video evidence. The stage 2 investigation was conducted by an appropriately senior and independent Council officer, and was particularly thorough in terms of re-reviewing all of the available evidence, adding further explanation, and correcting any minor shortcomings apparent in the stage 1 response.
26. Mx X complained that the Council “selectively reviewed the evidence with a bias towards its agents”. I disagree. Whilst the Council did not mention, in its stage 1 response, having reviewed Mx’s evidence, it had in fact done so, and it confirmed this in the stage 2 response. The Council did not review the statement of a witness that Mx X sent to the Ombudsman, but that was because Mx X did not send it to the Council during its investigation, so it was unable to take it into account. I have also reviewed the available evidence in its entirety and have seen no evidence of fault in the actions of the Council. And so, having followed its own processes by conducting a robust and balanced investigation, I find the Council was not at fault in concluding that the incidents had not happened as Mx X had described them.
27. I have also considered the way in which the Council dealt with this complaint from Mx X. I find that the misspelling of Mx X’s first name in the stage 1 response was, on the balance of probabilities, a simple typographical error, for which the apology included in the stage 2 response was an appropriate remedy.
28. The Council neglected to include information on how to escalate a complaint in its stage 1 response. This was fault, but it did not cause Mx X an injustice as they pursued their complaint anyway. Further, the Council apologised, which was sufficient remedy for the error, and it took action to prevent recurrence by addressing the matter with the complaints team.
29. Mx X alleged that the Council refused to use their preferred title, Mx, in its stage 1 response. Mx X felt this demonstrated transphobia. The Equality Act 2010 makes it unlawful for organisations carrying out public functions to discriminate against a person who has one of the protected characteristics, which includes gender reassignment.
30. I find that Mx X was not misgendered in the stage 1 response. The title “Mx” was not used, but nor was any other title denoting gender – the complainant was addressed by name only, i.e. “Dear [first name] [second name]”. It is not fault for the Council to address people in this way. Further, the Council had no way of knowing that Mx X wished to be known by the title “Mx”, because they had not mentioned that was their preference until after the stage 1 response had been sent.
31. The Ombudsman cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can consider whether a council has properly taken account of an individual’s rights in its treatment of them. In relation to the Council’s stage 1 response, I have seen no evidence that it has treated Mx X worse than another person who was not transgender would have been treated. I therefore do not find any fault.
32. I consider next the issues that arose when Mx X appealed the PCN. I find no fault with the Council’s explanation that Mx X had selected the title option “Ms” themselves on the PCN appeal website. I also note that Mx X referred to themselves as female in that appeal submission, which is more commonly associated with the title “Ms”.
33. I find no fault with the Council’s explanation that the member of staff who responded to Mx X’s PCN appeal would not have been aware of their preferred title – parking appeals and complaints are managed by separate teams within the Council, and it is not fault for a Council to operate separate software systems and customer contact databases across the organisation.
34. The Council admitted fault in that the title “Mx” was not one of the options available on the drop-down list of titles on the PCN appeal system. This was fault as it led to Mx X being misgendered. However, as this is the only instance of misgendering of which I have seen evidence, I disagree with Mx X’s complaint of “consistent” misgendering. Further, as the misgendering was caused by the constraints of the software system rather than by human error, I find that this fault was inadvertent rather than deliberate.
35. Whether this fault was discriminatory is a separate matter and, as I have set out above, one that can only be formally decided by the courts. I note, however, that indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage. The Public Sector Equality Duty is also relevant here. I also note that the Council’s equality policy makes a commitment “to promote fair and equal access to services by all citizens on the basis of need and to provide services in a manner which is sensitive to the individual”. I find that the Council was at fault in this regard, as Mx X was unable to select a title that reflected their gender identify, which caused them an injustice in the form of distress. The Council remedied the injustice caused by the fault by apologising to Mx X, and giving consideration to the removal of the title field from the PCN appeal system. I find this to be appropriate remedy for the injustice caused by this single instance of unintentional misgendering.
36. When I spoke with Mx X during my investigation, they said that their main reason for complaining to the Ombudsman was not for their own benefit, but to prevent other trans people from experiencing the same types of incidents, and to enable the Council to provide a better service to other trans people in future. They said that the Council had made no attempt to learn from its mistakes, nor to change practices. I disagree with this, as I have set out in this decision statement several actions that the Council has already taken in response to Mx X’s complaints. However, in the course of my investigation the Council provided me with a list of additional steps it has taken to improve services in light of Mx X’s complaints, including:

• “Mx” added as a possible prefix from the drop-down menu on the PCN appeal software system
• “Mx” added to case notes for PCN appeal system
• Standard complaint response templates shared with all parking staff
• SAR process and procedures request shared with all parking staff and APCOA (parking contractor)
• APCOA shared with all their staff importance of being aware of pronouns
• Ombudsman running training in East Herts on effective complaint handling (scheduled for November)

37. I have made no recommendations for further service improvements as I am satisfied that those already implemented by the Council will prevent further fault and injustice from occurring.

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Final decision

38. I have completed my investigation with a finding of fault that caused Mx X an injustice, but where the Council has already provided a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman