Local Government Ombudsman ignoring human rights!

 Why don't Local Government Ombudsmen protect a citizen's Human Rights against local authority abuse?

[Note by the PSOW team: When Public Service Ombudsmen (This includes Local Government Ombudsmen) deal with a complaint of maladministration that also includes an infringement of the complainant's human rights by a public authority, Public Service Ombudsmen must not merely refrain from infringing the human rights of the complainant themselves. In order to comply with their positive obligations under the constitution Public Service Ombudsmen may also have to take positive steps to protect the complainant's human rights from being infringed by the public authority. So Amy's question "Why don't Local Government Ombudsmen protect a citizen's Human Rights against local authority abuse?" is valid and deserves an answer.]

Introduction:  My name is Amy Hunter and I am a fragile 87 year old lady. Over the last few years I have had to suffer substantial injustice because of council maladministration, further compounded by the local government ombudsman's failure to do anything about it. Councils committing acts of  maladministration are one thing but when an ombudsman stands idly by whilst they do it, then tries to help them bury the fact, means there is a total lack of justice for people like me.

A picture of me during happier days.

I am sure that's not what the Government wanted when they introduced local government ombudsmen in 1974. It's obviously not what Crossman, the then leader of the house of commons expected of local government ombudsmen and I am sure he would be horrified at the way the local government ombudsman's office has degenerated over the last twenty years or so. Even more disturbing is the fact that very few MPs have the backbone to do anything about it.

As a result I have decided to make a stand, or more precisely a sit, because I am wheelchair bound. I hope my story will inspire others to do the same. One day government will no longer be able to ignore the plight of people like me and will be forced to introduce an open and honest system of justice for anyone who suffers injustice because of public authority maladministration. 

The background

During the early 1990's because of our age my husband and I decided to move onto our daughters property. My daughter and her husband had a detached barn on their property which was to be converted into a granny annexe. A dream retirement home, self contained yet within yards of my daughter should an emergency arise or help be needed. Unfortunately my husband died before our dream could come true but I still moved in during the mid 1990's. During the early years I was able to look after myself, only needing my daughters help occasionally.  Anyone who has been in a similar position will know what an ideal situation that was.

My granny annexe (My cat still lives there).

Until one day I decided to make myself a cup of tea, fell and broke both arms. That meant that I needed full time care until my fractures healed, so when I left hospital I went into nursing home for short term care. Unfortunately whilst I was in the nursing home waiting for two broken arms to heal they broke my hip. That meant another spell in hospital. When they released me from hospital my daughter would not allow them to send me back to the home that broke my hip and as a result I was sent to a nicer home albeit much further for my daughter to visit. Over the next couple of months we waited for a place in a home closer to where I lived. Eventually my daughter  managed to secure a place for me in a home within yards of where I lived. Luckily for me my granny annexe,  is only a couple of hundred yards (as the crow flies) from the nursing home. That meant, or so I thought, the best of both worlds. Full time care when I needed it but a mere wheelchair ride from my home when I wanted to spend some time with my family and my cats in my own home.

Me and a couple of friends outside the nursing home.

Tigger, one of my cats  sat on a chair in my kitchen.

[Update 7th March 2007: Bad news, Tigger my cat died a few days ago. He was taken ill quite unexpectedly and died at the vets the next day. I lost another of my cats Tinker last year due to diabetic complications and my son in law buried him in the garden near my granny annexe. He also buried Tigger next to him on Monday 5th March. Unfortunately I couldn't attend because we couldn't arrange a private ambulance in time. Due to County Council maladministration what should have been a simple wheelchair ride from the nursing home to my granny annexe now needs a private ambulance or wheelchair accessible vehicle to get me in and out of our property.]

This is just one example of how the Local Government Ombudsman's reluctance

 to do anything about council maladministration

 has had a serious impact on my quality of life.

The problem

During the 1990's borough council maladministration meant that a developer was allowed to construct a road closer to my daughters property that they should have been. During 1998 the then ombudsman Patricia Thomas found the borough council guilty of maladministration and the council promised the ombudsman that the roadway would be completed without any impact on my daughters property. A promise that they would break and a promise that the Local Government Ombudsman would ignore.

Although the county council as highway authority now suggest that they can compete the road to acceptable standards they have a number of insurmountable problems. Firstly their plan includes a 9" step at the boundary of our property (interference to our legal right of way), however, to overcome that problem they planned to construct a ramp on our land (trespass)  If they complete the works (as planned) without the ramp on our property the 9" step would make it impossible for most vehicles and wheel chair users to access and egress our property. In the alternative if they complete the works without trespassing on our property or leaving a 9" step at the boundary we would be faced with a gradient of about 1 in 5.5 (18% gradient) Hardly a council fulfilling their promise that the works would not impact on our property. In addition the works would also make it difficult and dangerous for all pedestrians to use the highway in the vicinity of our property.

The principles of Article 1 of the First Protocol of the Human Rights Act: This Convention right provides that every natural or legal person is entitled to the peaceful enjoyment of his possessions. Property" or "possessions" in this context has a wide meaning and covers anything of economic value.  It includes physical and non-physical property such as land and buildings.

An interference with property must also satisfy the requirements of legal certainty. In other words, there must be a law which permits the interference and that law must be sufficiently certain and accessible. There must also be procedural safeguards against arbitrary State decisions. The procedural requirements of Article 6 – right to a fair trial, may be relevant here.

The Ombudsman's interpretation of Article 1 of the First Protocol of the Human Rights Act: In a cartoon format.

Why won't the Ombudsmen protect a family's convention rights against local authority abuse?

The Low down

In order to complete the road the county council as highway authority want to terminate the footway on either side of my daughters property. This would force pedestrians (including wheelchair users) to leave the footway for at least 10mtrs. If that's not bad enough the access to my daughters property is on a bend. So the county council expect pedestrians to leave the relative safety of the footway and use the edge of the road on a bend as a means of continuing their journey. That's so ludicrous it beggars belief but when you take into account that the ombudsman hasn't yet realised there is a problem makes me wonder just what planet ombudsmen come from.

In addition pedestrians have the right of way on a footway and are relatively safe. Especially since the road in question is a class 3A distributor road with a wide verge between the footway and the road. Even when traversing a vehicular crossing across a footway a pedestrian  still has priority over traffic. However, that's not the case when they are forced to leave the safety of the footway and walk into and along the road. Traffic would have priority and pedestrians would be in a very vulnerable position. In any event would drivers expect pedestrians to be walking in the road when the road in question is supposed to have footways on both sides  for it's entire length?

As a wheelchair user I have an even worse problem to face. At the moment, as a direct result of council maladministration and the ombudsman's reluctance to do anything about it, I cannot visit my own home by wheelchair. That is a clear and unequivocal breach of my human rights (Article one Protocol one, not forgetting other UK acts about the rights of disabled people ). But neither the councils or the ombudsmen care, they are quite prepared to ignore my human rights and those of my daughter and family just so they can bury a serious and unresolved case of maladministration.

The access to my daughters property would be so steep vehicle and wheelchair access would be extremely dangerous if not impossible. In addition pedestrians who decided against risking life and limb by walking in the road would be faced with a cross fall that would be very difficult to traverse in good weather but downright suicidal in icy weather.

 In line with the 1995 Disability Discrimination Act National Planning Policy Guidance note 13 (PPG13) calls for a sustainable environment  which is  accessible to  everyone,  including  wheelchair   users   and   other people  with  disabilities.

This is an extract from the Highway Agency design manual for footways (HD 39/01)

Table 2.3 Geometric Parameters for Footways

[Note the extreme limit of 7% maximum cross fall at crossings. (That's 1 in 14)]

Even the county councils own code of practice states 

3.10 Crossovers, Crossovers are locations where the kerb has been lowered to allow vehicular access over the footway.

[The County Council plan to terminate the footway at either side of the crossover.]

leaving a minimum flat width of 1.2m for people who may experience difficulty crossing the slope.

[The County Council want to leave zero flat width of footway for people who may experience difficulty crossing the slope.

 Forcing pedestrians (and wheelchair users) to use the road.]

Slope gradient should not exceed 8% (1 in12). (When the roadway was originally planned the limit was 1 in 15)

Near right picture: As soon as a cross fall exceeds 1 in 12 a persons centre of gravity (yellow line) is outside their points of contact with the surface. (both feet) That's the point at which they become unstable and are at risk from falling. Most able bodied people could lean to one side to counter balance the forces but many disabled people can't do that so they would be in serious danger of falling and injuring themselves. Their only alternative would be to  proceed along the road. A dangerous thing to do at the best of times but suicidal for disabled people.

No doubt that's why the code of practice states The maximum cross fall should be 1 in 12

Far right picture: A pedestrians centre of gravity is well outside their point of contact with the surface. Even able bodied people would find it extremely difficult to lean enough to counter balance themselves. It's obvious why the county council plan to terminate the footway at either side of the crossover. They must know that attempting to traverse this crossover would be suicidal and that pedestrians would have a better chance walking in traffic on a bend in the road.

This cross fall is nearly three times steeper than the maximum allowed in the code of practice.

This is an extract from the Department of Transport regarding inclusive mobility

3.2 Gradients (see Section 8.4 for design of steps and ramps)

There is general agreement among guidelines from many countries that an 8 per cent (1 in 12) slope is the maximum that may be used; anything greater than this will cause difficulties for manual wheelchair users. Most guidelines also agree that 5 per cent (1 in 20) is preferred. (A ramp is generally defined as a pathway with a slope of more than 5 per cent). The effects of different gradients have been described in the Swedish publication Streets for Everybody as:

• 1% (1 in 100) - is never an obstacle.
• 2% (1 in 50) - can be managed by most people (and also provides good drainage).
• 2.5% (1 in 40) - can be managed by many people.
• Steeper than 2.5% - impossible for many manual wheelchair users.

These figures may be regarded as a counsel of perfection as the terrain in many places imposes steeper gradients than 2.5 per cent, but the standard of 5 per cent should be borne in mind when designing new footpaths and pedestrian areas.

Steeper gradients than these can be managed by some wheelchair users, but only over very short distances (1000mm or less), for example on a ramp between a bus entrance and the pavement. Even over these short distances the maximum gradient used should be no more than 10 per cent (1 in 10). As a general rule, however, 8 per cent (1 in 12) should be used as the absolute maximum. Not only is the physical effort of getting up a steeper gradient beyond many wheelchair users, but there is also a risk of the wheelchair toppling over.

Cross fall on footways and footpaths may be necessary to provide good drainage², but if too great, can make it difficult for wheelchair users. Recommendations contained in guidelines vary somewhat but, under normal circumstances, a figure of 2.5 per cent (1 in 40) should be regarded as the maximum acceptable. Where possible, it is preferable to have a cross fall between 1 and 2 per cent.

Variable cross fall, such as may be found when travelling along a street with vehicle cross-overs, can be irritating as it affects the steering of wheelchair users and can also cause problems for people with walking difficulties. Local authorities should take these problems into account when considering their policies on front garden parking in residential areas, which may result in the installation of cross-overs.

Even the county councils own code of practice states

3.8.1 Ramps, A ramp is an external slope with a gradient of more than 5% (1 in 20).

Some wheelchair users lack the strength to propel themselves up a slope and have difficulty in slowing down or stopping when descending, so steep gradients can cause problems.

Guidelines:

• Maximum permitted gradient should be 8 %( 1 in 12).
• Ramp lengths will depend on the gradient; recommended limits are shown in table 2 below.

 Table 2. Recommended maximum ramp lengths in relation to ramp gradient. 

Cartoon left: When a slope exceeds 1 in 12 the wheelchair users centre of gravity is outside the points of contact with the surface. That's the point at which the wheelchair starts to become unstable and they are in danger of the wheelchair tipping over. Some wheelchair users could lean forward to make themselves safer and some carers may be strong enough to stop the wheel chair tipping backwards. However, there are many that won't be able to do that.

 No doubt that's why the code of practice states that  the maximum gradient of a ramp should be 1 in 12!

Cartoon right: This is the slope that I would be faced with if the county council completed the roadway without trespassing on my daughters property. The centre of gravity is well outside the points of contact with the surface making the wheel chair extremely unstable. Even if I was able to lean forward my daughter may not have the strength to propel me up the ramp unaided. After all she is a pensioner herself.