Taking Legal Action on Barriers

Jamie Wood attempting to pass through the Hob Moor barriers on his trike

In December campaign member Jamie shared with us details of a Freedom of Information request he put in about the inaccessible barriers at Hob Moor. Now he updates us on what happens since, and how you can follow his lead.


I have Multiple Sclerosis. My walking range is now a matter of metres, but I can still use a cycle, which is now my primary mobility aid and way of exercising. Cycling with a disability during Covid times has been a mixed experience. On the one hand the roads have been quieter, but on the other hand the traffic on the roads has been faster, and shared walk/cycle paths have become far busier. Meanwhile, Covid measures have meant that I can no longer do the more exciting supported cycle rides that I enjoyed previously.

A year and a half ago I added stabilisers to my bike, and three months ago I shifted to a trike. Switching to a non-standard type of cycle has made me more reliant on good quality and accessible cycle infrastructure. I’m unable to dismount and push now and my cycling range has reduced. Being able to get to as many places as I can within my radius became more important than ever.

With this backdrop in mind, I’ve now become frustrated with my local council. Over the past three years I have tried very hard to engage with my council and work constructively and reasonably to improve cycle infrastructure. The sum total of my achievements is to have helped to get one post moved almost a metre. It’s an important metre and a particularly annoying post, but still. In the same period of time, we’ve seen awful infrastructure put in, cycling levels flatline, keys paths closed and blocked at a moments notice, and decisions made that will cripple cycling in York for many years to come. In short, being seemingly reasonable got me nowhere.

I decided to take a different approach, not to be mollified by promises of consultation or reviews and see where things got me. I started complaining. Let me focus on one particular incident in the hope that others can pick up the baton and be encouraged to do likewise.

In October 2020, wanting to cycle further, I set off for a local green space known as Hob Moor, following a cycle route recommended by the local council. Now I did know there were barriers on the way but I wanted to see if I could get through on my new stabilised cycle. Nope. Firstly, there was no way I could get through the extraordinary footplates which defend this beautiful open space – I would be grounded on them, probably damaging my cycle and stranding me. I might have managed it with a kamakazesque run at them, with millimetre perfect aim and a F1 style braking manoeuvre to cope with the looming cattle grid, but that would not have been either safe or sensible.

Jamie lines up for attempt at the ramp

Second, there is bypass gate, locked with a Radar key. I brought mine with me. It quickly became clear I would not be able to manage it. That’s because getting through this gate requires reversing at some point and my cycle can’t reverse unless I get off and push. In order to unlock the gate without dismounting I have to get into a position which makes it impossible for me to then get through the gate. In short, they are not designed with someone who is disabled in mind and independent access is impossible unless you can get off and push, i.e. you are able bodied.

Jamie demonstrates why the gate with radar key is not a suitable alternative

I retreated and went home. Next is a to do list of what I did next.

Freedom of information (FOI) request: This can be publicly seen on the website whatdotheyknow.com, but I can’t claim credit for it: it is lightly adapted from the brilliant letter made by Heavy Metal Handcyclist on Twitter (@crippledcyclist) and there are some important bits of it that I didn’t fully understand when I submitted it that turned out to be crucial.

What I expected to happen: the council to put it hands up, admit the problem and put it right on a clearly stated timescale.

What actually happened: I received a perfunctory response that, at best, partially answered some of my questions. This seemed to me to be an opening gambit to try and grind me down into giving up. Remembering my moto “being seemingly reasonable gets you nowhere”, I moved to the next step.

I now followed Doug Paulley’s brilliant website and his Disability Attitude Re-adjustment Tool (DART). I wholeheartedly recommend this, but there are a few details later which I think are important that may be unique with transport issues.

Letter before Action (LBA)

My letter can be freely used as a template. I’ve removed some of the more personal bits but summarised what they say. Essentially you send a letter to the other party indicating that you intend to take action and on what basis, clearly stating the timescale by which you expect a response. The FOI request I sent asked where an LBA should be sent and so I sent my LBA to the address the council had given me.

What I expected to happen: the council to put it hands up, admit the problem and put it right on a clearly stated timescale.

What actually happened: Nothing. I mean literally nothing. After I had already proceeded to the next step, I received an email saying that due to an internal mistake it hadn’t been received and could the council have more time. I still don’t know whether there had really been an internal mistake, or whether they didn’t really believe I would go through with it, but as it happens, I had already moved the process forwards when I received this email so I couldn’t give the council more time, even if I’d wanted to.

Now the next step. I was already firmly in territory I hadn’t expected to get to.

Issuing court proceedings

This is where things get a little more complex and I made some tactical mistakes which I will lay out clearly here so others don’t repeat them. Once again, my particulars can be freely used  as a template. I’ve removed some of the more personal bits but summarised what they say. I’ll go through this in a bit more detail. You need to register on the relevant website which is fine, make the claim and then issue particulars). The bit I made a mistake on is on how much, and what to claim. For many using the Equality Act (2010) who are entitled to legal support this is simple – choose the maximum amount (£10k at time of writing) and tick the box for an injunction. If you are not entitled to support – the position I was in – this will cost you money (just over £600 for everything) and more complicated, you are not protected from the other parties costs if it does end up in court. This is where I wavered: I calculated what I would reasonably expect to receive rather than go for the full amount. This turned out to be important. I also didn’t go for the injunction. In retrospect, without the safety blanket of legal aid to underwrite costs this was probably a good thing.

What I expected to happen: the council to put it hands up, admit the problem and put it right on a clearly stated timescale, or to go to court and force the council to do something.

What actually happened: days before the deadline the council offered to just pay me off. My attempt to negotiate for change rather than money was rebuffed. This is where the mistake I made came to the fore. I can only argue that the council should provide what I would reasonably expect in court, in my case only a smallish amount of money, because that’s all I ticked and with no injunction to force them to change. After a bit of helpful input from others I reluctantly accepted. One good thing: no non-disclosure clause, hence this article.

So, what have I learned? This was easier than I expected, writing the letters is the hard bit, but hopefully providing templates here will take the sting out of this for others, just as Heavy Metal Handcyclist’s letter did so for me for the FOI. Crucially, if you can you must go for the maximum amount, not because that’s what you expect to receive, but rather it’s sets the floor for what the other party needs to do to prevent it from reaching court. If you are offered what you expect from court and refuse, then, you could be viewed as vexatious and achieve nothing. And if you are not supported by legal aid be aware that you are potentially liable if it goes to court, especially for an injunction, and you lose. Nonetheless I maintain that being seemingly reasonable gets you nowhere: I wavered slightly in my intent, the barriers are still there and I still can’t cycle independently to Hob Moor. I don’t like adopting this attitude but it seems the only way, for my local council at least, to make something actually happen.

A word on the barriers themselves at Hob Moor. I am well aware that the purpose of these barriers is to prevent motorcycle access, but this needs to be balanced with the needs of disabled access. And balanced is the word. These barriers, or more specifically the footplates, were bespoke made in 2007 and no equality impact assessment has ever been done on them (from what I was able to determine) despite that being a legal requirement under the DDA(2005). No balance can ever be achieved if the impact is unknown. And then any balance must be achieved with a combined assessment of harm, evidence and enforcement. Simply placing barriers which break the law can only be described as equivalent to vigilantism.

I absolutely encourage anyone to take action using the Equality Act (2010) to do so. I was reluctant at first, but a quote of Doug Paulley’s stuck with me, I paraphrase – those of us with the capacity to pursue these things have a responsibility to do so in order to enable others.

Mandatory disclaimer; I am NOT a legal expert. This is not legal advice, merely my opinion and shared experiences.

8 thoughts on “Taking Legal Action on Barriers

  1. Hi. I was reminded of this great post recently when an elder family member bought a trike as she wishes to be able to move actively around the local area, going shopping etc, but she lacks confidence on two wheels. She isn’t registered disabled, and can walk, but would certainly struggle to lift the trike around/through the ridiculous barriers our local park has. There is no radar key option, and the kissing-gate style barriers are on a signed cycleway, which is a useful cut-through to other locations beyond the park (as well as merely providing access to the park).

    So I am left wondering whether this approach could apply in cases where no parties have a registered disability? Do you have any thoughts? And even if we could move forward on that basis would this expose me to a risk of having to pay a considerable sum of money without even getting things changed? I don’t have £600 to potentially throw away on this!

    Any advice would be very welcome.

    Like

    1. Hi Tim,

      So two answers — first one is easy: send an FOI. Anyone can do this, it is a good way to see how reasonable the LA is going to be. Use @crippledcyclist’s template available above. I wholehearted recommend doing this. Put it on social media and you may find others who this affects.

      Second is more complex (but do the above first anyway, at worst you will get more information, and it may/should solve the problem). I don’t believe having a registered disability is a thing, all thats important is EA (2010) applies. If so then you can follow the templates above. I didn’t risk £600, more like £60. If you are entitled to legal aid it is risk free.

      Do feel free to get in touch, on twitter by preference,

      Best

      Jamie

      Like

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