11th Report, 2008 (Session 3)

Stage 1 Report on the Disabled Persons' Parking Places (Scotland) Bill

REMIT AND MEMBERSHIP

REPORT

Annexe a: SUBORDINATE LEGISLATION COMMITTEE REPORT
ANNEXE B: FINANCE COMMITTEE REPORT

ANNEXE C: extracts from the minutes of the local government and communities committee

18 June (19th Meeting, 2008 (Session 3))
2 September (21st Meeting, 2008 (Session 3))
24 September (23rd Meeting, 2008 (Session 3))
1 October (24th Meeting, 2008 (Session 3))
8 October (25th Meeting, 2008 (Session 3))
29 October (26th Meeting, 2008 (Session 3))

ANNEXE D: ORAL EVIDENCE AND ASSOCIATED WRITTEN EVIDENCE

2 September, (21st Meeting, 2008 (Session 3))

Written Evidence
Equality and Human Rights Commission

Oral Evidence
Euan Page, Parliamentary and Government Affairs Manager, Equality and Human Rights Commission Scotland

24 September (23rd Meeting, 2008 (Session 3))

Written Evidence

Association of Chief Police Officers in Scotland
Glasgow City Council
Highland Council
Inclusion Scotland
Leonard Cheshire Disability
Scottish Disability Equality Forum

Oral Evidence

Sergeant John Donaldson, Strathclyde Police Traffic Management, Association of Chief Police Officers in Scotland;
Donald McKinven, Traffic Manager, Glasgow City Council;
Richard Guest, Head of Roads and Community Work, Highland . Council;
Dr Ann Wilson, Convener, Inclusion Scotland;
Cllr Jim McLeod, Member, Inclusion Scotland;
Ryan McQuigg, Policy and Parliamentary Officer – Scotland, Leonard Cheshire Disability;
Alex Thorburn, Local Campaigns Co-Ordinator for Scotland, Leonard Cheshire Disability;
Gordon Mungall, Convener, Scottish Disability Equality Forum;
Liz Rowlett, Senior Policy, Information and Parliamentary Officer, Scottish Disability Equality Forum.

1 October (24th Meeting, 2008 (Session 3))

Written Evidence

Transport Strategy Division, Scottish Government

Oral Evidence

Guy Mason, Public Affairs Manager, ASDA;
Paul Hedley, Customer Service Team, ASDA;
Kelvin Reynolds, Director of Technical Services and Head of Safer Parking Scheme, British Parking Association;
Graeme Taylor, Scottish Regional Manager, National Car Parks Ltd;
Stewart Stevenson MSP, Minister for Transport, Infrastructure and Climate Change, Scottish Government;
Angus MacInnes, Bus, Road Safety and Local Roads Policy and Traffic Branch, Scottish Government;
Bill Brash, Team Leader, MACS and Mobility Team, Scottish Government;
Judith Ballantine, MACS Secretary, Scottish Government.

8 October (25th Meeting, 2008 (Session 3))

Written Evidence

Jackie Baillie MSP, Scottish Government

Oral Evidence

Jackie Baillie MSP, Scottish Government;
David Cullum, Clerk Team Leader, Non-Executive Bills Unit;
Robert Marr, Assistant Legal Adviser, Directorate of Legal Services.

ANNEXE E: OTHER WRITTEN EVIDENCE

Aberdeenshire Council
Angus Council
Association of British Drivers in Scotland
City of Edinburgh Council
Deanne Wardrope
East Dunbartonshire Council
East Renfrewshire Council
Ecas
Falkirk Council
Glasgow Centre for Inclusive Living
Law Society of Scotland
Midlothian Council
NCH Scotland
North Ayrshire Council
Perth and Kinross Council
PAMIS
South Lanarkshire Council
West Dunbartonshire Council
West Lothian Council

Remit and membership

Remit:

To consider and report on (a) the financing and delivery of local government and local services and planning; and (b) housing, regeneration, anti-poverty measures and other matters (apart from sport) falling within the responsibility of the Minister for Communities and Sport.

Membership:
Alasdair Allan (Deputy Convener)
Bob Doris
Patricia Ferguson
David McLetchie
Duncan McNeil (Convener)
Mary Mulligan
Jim Tolson
John Wilson
Johann Lamont (Member from 13/06/2007 until 01/10/2008)
Kenneth Gibson (Deputy Convener from 20/06/2007 until 26/06/2008, Member from 13/06/2007 until 26/06/2008)

Committee Clerking Team:
Clerk to the Committee
Martin Verity

Senior Assistant Clerk
David McLaren

Assistant Clerk
Ian Cowan

Committee Assistant
Fiona Sinclair

Stage 1 Report on the Disabled Persons' Parking Places (Scotland) Bill

The Committee reports to the Parliament as follows—

introduction

Introduction of the Bill

1. The Disabled Persons' Parking Places (Scotland) Bill was introduced as a Member’s Bill by Jackie Baillie MSP on Monday 2 June 2008. The Bill was accompanied by a Policy Memorandum and by Explanatory Notes, including a Financial Memorandum. The Parliamentary Bureau, at its meeting on Tuesday 10 June 2008, agreed to recommend to the Parliament that the Local Government and Communities Committee be designated lead committee in consideration of the Bill at Stage 1. This was agreed to by the Parliament on Wednesday 11 June 2008.

2.The Subordinate Legislation Committee considered the Bill at its meeting on 2 September 2008. Its report to this Committee is attached as Annexe A.

3.The Finance Committee considered the Financial Memorandum which accompanied the Bill. It received written evidence and took oral evidence from Jackie Baillie MSP on 16 September 2008. Its report is attached as Annexe B.

4. Twenty eight organisations and individuals responded to the Local Government and Communities Committee’s call for written evidence. The Committee took oral evidence on the Bill from witnesses at its meetings on 2 September, 24 September, 1 October and 8 October 2008. Extracts from the minutes of these meetings are attached at Annexe C and extracts from the Official Reports of those meetings, together with associated written submissions and other written evidence, comprise Annexe D. All other written submissions comprise Annexe E. The Committee wishes to express its thanks to all those who provided written and oral evidence on the Bill.

Aims of the Bill

5. According to the Bill’s Policy Memorandum, the main policy objective of the Bill is to prevent disabled persons’ parking places being occupied by those who are not entitled to use them, by seeking to ensure that enforcement action can be taken.

6. The Policy Memorandum goes on to say that the Bill will make all permanent disabled street parking places enforceable. It requires local authorities to identify all existing relevant unenforceable disabled street parking places and promote orders for those still required. Such orders may be made under the existing Road Traffic Regulations Act 1984 (c.27). For those parking places that are no longer required, then the Bill requires the local authority to remove any road markings or sign posts.

7. In relation to off-street parking the local authority will be required to promote an order to designate enforceable disabled persons’ parking places in the public car parks it owns.

8. The Bill will also require the local authority to contact owners or persons having an interest in private car parks, including supermarkets and out of town retail centres, to seek to negotiate an agreement which would enable the local authority to promote an order to make the disabled persons’ parking places enforceable.

9. Once an order is in place, action can be taken against anyone illegally occupying a disabled persons’ parking place covered by it. Only Blue Badge holders will be permitted to park in such spaces.

Consultation

10. In Session 2 of the Parliament, Jackie Baillie MSP prepared a consultation paper¹ on her proposal for a Bill. The consultation ran from 20 November 2006 until 26 February 2007.The main areas of consultation were:

• a consultation period for new disabled persons’ parking bays being created,
  
• enforcement in private car parks such as supermarkets,
  
• who should be responsible for enforcement and
  
• the level of fines.

11. A total of 172 responses were received of which 21 were from local authorities, 118 were from individuals, 32 were from organisations and one was from an MSP.

12. In Session 3, on 16 May 2007, in accordance with Standing Orders, Jackie Baillie MSP lodged a statement of reasons why a further consultation on her proposed Bill was not necessary. She argued that a consultation had been completed within the previous 3 months, that there had been an adequate opportunity for the public to comment on what was being proposed and that further consultation would duplicate effort.

13. The Local Government and Communities Committee, at its meeting on 20 June 2007, considered the statement of reasons from Jackie Baillie and agreed that no further consultation on the draft proposal was required and it could proceed to a final proposal. The Bill was subsequently drafted and introduced.

14. The Committee is satisfied with the adequacy of the consultation which preceded the introduction of the Bill.

Policy Memorandum

15. The Bill is accompanied by a Policy Memorandum, prepared by the Parliament’s Non-Executive Bills Unit on behalf of Jackie Baillie MSP, which, in accordance with Standing Orders, sets out the policy objectives of the Bill, possible alternative approaches, the consultation process and assessments of the effects on equal opportunities, human rights, island communities, local government and sustainable development.

16. The Committee notes the contents of the Bill’s Policy Memorandum and is satisfied that it meets the requirements of Standing Orders.

subordinate legislation

17. There are provisions in the Bill which will confer delegated powers to make regulations. As with all bills containing such powers, the Subordinate Legislation Committee considered the provisions and reported to this Committee.

Report of the Subordinate Legislation Committee

18. The Subordinate Legislation Committee considered the Bill at its meeting on 2 September 2008. It agreed to draw the attention of this Committee to one of the provisions to confer delegated powers, contained in section 5(6).

19. Section 5 of the Bill enables a person to request a local authority to make a disabled street parking order. Section 5(6)(a) enables the Minister to make regulations as to the form and manner in which such a request is to be made. If the Minister does not make such regulations, section 5(6)(b) enables the local authority to specify how such a request is to be made.

20. The Subordinate Legislation Committee was concerned that, given that the powers in sections 5(6)(a) and 5(6)(b) are both discretionary, a situation could arise in which neither the Minister not the local authority specified how a request from an individual should be made. If those circumstances arose, the Bill does not provide for how local authorities will obtain sufficient information which is required to enable them to make a decision.

21 Jackie Baillie MSP, in a letter to the Committee², said that the information which was required to be included an application form was clearly specified within the Bill at section 5 and it would be no more than a matter of good administrative practice for the authorities to devise such a form. What had been included was a power for Ministers to prescribe, should they wish to, a power which could be used if there were a lack of consistency across the country.

22. She said, however, that if the Committee were minded to agree with the suggestion of the Subordinate Legislation Committee, a simple solution would be to amend the Bill at Stage 2 to make the requirement on Ministers at section 5(6)(a) a mandatory one.

23. The Committee believes that it is unlikely that the structure of section 5 of the Bill would be unworkable in practice. It would be open to a member to propose an amendment to this section at Stage 2 of the Bill, if it is thought to be required.

financial memorandum

Report of the Finance Committee

24. The Finance Committee, in its report on the Financial Memorandum, agreed to draw a number of matters to the attention of this Committee, as follows.

25. The Finance Committee noted with concern that the possibility of additional funding to local authorities appears not to have been discussed by the member in charge of the Bill with the Scottish Government. The Committee recommended that the lead committee pursue this issue with the Scottish Government and further with the member in charge of the Bill.

26. While the Finance Committee understood that some car park operators have already introduced schemes to make disabled parking bays enforceable, it agreed to encourage the lead committee to pursue this issue during its oral evidence programme.

27. The Finance Committee agreed with Jackie Baillie that, given the lack of available data on the number of existing unenforceable disabled street parking places (“advisory places”) in Scotland, and the wide variety of approaches between different local authorities, there is an unavoidable level of uncertainty surrounding the figures in the Financial Memorandum. However, the Finance Committee considered that a more accurate picture of the potential cost of the Bill could have been provided if, during the consultation, specific questions on the financial implications of the Bill had been asked.

28. On the basis of figures provided to the Finance Committee by Glasgow City Council, the Finance Committee concluded that the overall estimate of £1.7 million for promoting and implementing orders across Scotland is subject to a significant degree of doubt (although it was noted that this was acknowledged both in the Financial Memorandum and in oral evidence by Jackie Baillie). The Finance Committee was also concerned that both Fife Council and Glasgow City Council had stated that they will need additional funding from the Scottish Government to cover the cost of implementing the Bill. The Finance Committee strongly recommended that the lead committee pursue this issue further.

29. In relation to owners of off-street parking, the Finance Committee was concerned that there does not appear to be much evidence available regarding their willingness to participate in and cover costs for promoting and implementing orders in their car parks. The Finance Committee noted that it is properly the place for the lead committee to consider such issues and the Committee recommended that it did so.

30. The concerns highlighted and the recommendations made by the Finance Committee to this Committee are considered later in this report.

general principles of the Bill

Abuse of disabled persons’ parking places

31. According to the 2001 Scottish Census, 20% of Scotland’s population report having a long-term illness, health problem or disability. A review of NHS wheelchair services in Scotland reported that there are approximately 96,000 registered users of the service. It is unlikely that a fifth of the population will require the use of parking places for disabled people, but certainly a significant proportion will. In addition, the prevalence of disability increases with age, and therefore as the population continues to age, the incidence of disability will continue to grow.. Stewart Stevenson MSP, Minister for Transport, Infrastructure and Climate Change, in answer to a parliamentary question, reported that approximately 4.5% of the Scottish population holds a Blue Badge parking permit. Using population estimates as at June 2006, this translates as over 230,000 people in Scotland.³.

32. The most recent survey (2007) from the Baywatch Campaign, which aims to put an end to the abuse of disabled persons’ parking places by persons not entitled to use them, indicates that one in five accessible bays in supermarket car parks were being used by people without Blue Badges. This is at the same level as the last survey in 2005. In total, more than a third of car parks were found to have no accessible bays free for disabled shoppers because of such abuse.

33. There are no official figures on the abuse of on-street disabled persons’ parking places.

34. Alex Thorburn of Leonard Cheshire Disability told the Committee:

“I am also vice-chairman of Dumfries and Galloway access panel… I cite the example of parking at Dumfries and Galloway royal infirmary. I have surveyed the parking there several times and have found that, in general, 50 per cent or more of the disabled parking bays are taken up by non-badge holders; on one occasion the figure was 75 per cent. I have missed a hospital appointment because of that, and have heard of other people missing appointments at Dumfries and Galloway royal infirmary because they could not get parked.”⁴

35. In written evidence, the Equality and Human Rights Commission said:

“For someone with an impairment which limits their ability to travel any distance by foot, the abuse of designated parking bays by non-disabled drivers is much more than a minor irritant. It represents a significant barrier to an individual’s ability to undertake the most mundane but essential day to day activities – going to the supermarket, meeting friends and relatives, visiting the library or post office.”⁵

36. In oral evidence, Ryan McQuigg of Leonard Cheshire Disability said:

“In our disability review of the UK last year, 66 per cent of disabled people said that they needed their car because public transport was not accessible, so public transport is creating a barrier too.”⁶

37. A number of witnesses commented that complaints of abuse of disabled persons’ parking places appeared to be at a lower level than the actual number of incidents.. Liz Rowlett of the Scottish Disability Equality Forum said:

“Just because you are not hearing complaints does not mean that people do not want to complain. Sometimes, people challenge marked bay abusers only to be met with threats and abuse. I suggest that that is a deterrent to people making complaints. If people wish to complain about a neighbour, they might be deterred from doing so if they have been harassed…Some people might wonder what the point is of making a complaint and putting themselves in a difficult position if the complaint is not going to be followed up.”⁷

38. Councillor Jim McLeod of Inclusion Scotland told the Committee that:

“On the issue of bays outside people's houses, during my time as the director—and previously chair—of Inverclyde Council on Disability and, over the past 17 months, as a councillor, most of the people who have come to me with problems about parking bays have been concerned not about the bays outside their homes but about the bays at the supermarket, health centre, hospital and so on.”⁸

The Blue Badge Scheme

39. The Blue Badge Scheme is a UK wide scheme. It provides parking concessions for disabled people with mobility problems who travel either as drivers or passengers. The scheme is designed to help disabled people travel independently and allow them to park close to their destination. The scheme is administered by local authorities, and eligibility for a blue badge is at their discretion. Appeals against the decision of eligibility must be made only to the local authority concerned. Local authorities also have the option of making a charge to cover administration costs.⁹

40. The former Scottish Executive published guidance on the Blue Badge Scheme in 2007, which indicates where badge holders can park:

• “Badge holders may park free of charge and without time limit at parking meters on-street and ‘pay-and-display’ on-street parking.
  
• Badge holders may be exempt from time limits imposed on other users.
  
• Badge holders may usually park on single or double yellow lines in Scotland without any time limit. In England and Northern Ireland, there is a time limit of up to 3 hours.”

41. The Minister for Transport, Infrastructure and Climate Change, Stewart Stevenson MSP, told the Committee that the previous administration had undertaken a survey in 2003, which suggested that 44% of designated parking bays were being used by non-blue badge holders.¹⁰

42. The Equality and Human Rights Commission said:

“We must make a clear policy distinction between the issue of tightening up the blue badge scheme to make it less open to fraud and misuse and dealing with people who persistently make fraudulent use of blue badges, and the issue of people's choices about how and where they live their lives being curtailed because the number of designated parking spaces is inadequate.”¹¹

43. The UK Department for Transport (DfT) conducted a strategic review of the operation of the Blue Badge Scheme in England between May and September 2007. This was followed by a consultation on the review’s findings in January 2008, which closed in April 2008. Responding to the consultation, the DfT announced on 20 October 2008 that:

“New efforts to fight fraud and abuse of the Blue Badge scheme include:

• Establishing a national system of data sharing (using up to £10 million of government funds) to identify Blue Badge cheats. We hope to complement this with new legal powers that will allow parking enforcement officers to seize lost, stolen and fraudulent Blue Badges.
  
• Upgrading the Badge security features, as such as barcodes that can be read through windscreens, to make the Badge harder to forge
  
• Conducting a national publicity campaign to highlight the Blue Badge Reform Strategy. This will include messages about the impact that abuse has on disabled people.
  
• Supporting the British Retail Consortium to reduce abuse in their members' off-street car parks, such as supermarket car parks.”¹²

44. The DfT also proposes extensions to Blue Badge entitlement, subject to new legislation, to make more groups eligible for Blue Badges. It plans to enable local authorities to conduct improved medical assessments of applicants.

45. Stewart Stevenson MSP, Minister for Transport, Infrastructure and Climate Change, told the Committee in his oral evidence on 1 October 2008 that the Scottish Government was taking a close interest in the review of the scheme.¹³

46. He also told the Committee that:

“A senior policeman said to me, on an informal and off-the-record basis, that a person who abuses a disabled parking space is four times as likely to have a criminal conviction as someone who does not. The policeman was suggesting, in other words, that people who break rules in one part of their life are likely to break rules in lots of parts of their life.”¹⁴

47. The Committee is aware of a research exercise undertaken at Huddersfield University in 1999 which showed that drivers who illegally use disabled parking bays are likely to have committed other offences. By checking car registration plates, with the police, on the police national computer, the research found that a third of the illegal parkers had criminal records, half had committed previous road traffic offences and a fifth were ‘of immediate police interest’ because of suspected connections with unsolved crime. ¹⁵

48. The Committee expresses its concern about the reported level of abuse of the Blue Badge scheme, which, in addition to the possible fraud involved, inevitably impacts on the availability of parking spaces to those who genuinely need them.

49. The Committee notes that the operation of the Blue Badge scheme is a UK-wide scheme and that it is not within the scope of this Bill to change it. Nevertheless, it believes that a wider approach to the issue of disabled persons’ parking also requires that abuse of the Blue Badge scheme should be tackled. This may indeed have some further benefits in tackling crime generally.
The Committee encourages the Scottish Government to consider how best the results of the Department for Transport’s review of the operation of the scheme in England can inform policy in Scotland.

Enforcement

51. The enforcement of the use of designated parking places is either the responsibility of the local authority or the police.

52. Six Scottish local authorities (Aberdeen, Dundee, Edinburgh, Glasgow, Perth and Kinross and South Lanarkshire) operate decriminalised on-street parking enforcement. This means that, under the provisions of the Road Traffic Act 1991 (c. 40) the local authority has assumed control of the enforcement of parking offences within their areas from the police.

53. In these areas, enforcement is carried out by parking attendants employed by the local authority, or a contractor appointed to undertake this task by the authority. Parking attendants can issue fixed penalty notices for parking offences, which are enforceable by the local authority without recourse to the courts. Appeals against fixed penalty notices are heard by an Independent Parking Adjudicator. The level of any fixed penalty is set by the local authority concerned.

54. Outside of the six decriminalised parking enforcement areas, parking offences are still enforced by the police, although the enforcement is normally carried out by traffic wardens employed by the police. Traffic wardens normally deal with parking offences through the issue of fixed penalty notices. In areas where the police are responsible for parking enforcement, offences can be enforced through the courts, normally only after an offender chooses not to pay a fixed penalty notice, and can on conviction be the subject of fines up to level 3 on the summary fine standard scale, i.e. up to £1000.

55. Currently, traffic authorities can designate advisory parking places for disabled people without having to go through any formal approval process. The authority simply creates a space by erecting signs and/or painting a clearly defined disabled parking space on the road. However, due to their informal nature there is no sanction against the use of advisory parking places by non-blue badge holders: rather the authority relies on the goodwill of drivers not to park in the designated space.

56. Enforceable parking places are those which have been formally designated through a designation order made under the Road Traffic Regulations Act 1984. Designation Orders are often referred to as Traffic Regulation Orders (TROs) as they share the same authorisation process as a TRO, promoted by the local authority. These parking places are marked with paint and display signs indicating that they are for the sole use of disabled people.

57. All those who submitted written evidence recognised the need for disabled persons’ parking places, although there are differences in opinion on the designation of disabled persons’ parking spaces and how best to protect them from misuse. Some argue that a process of enforcement is now appropriate, while others support the current approach.

58. Leonard Cheshire Disability in its written evidence illustrated its full support for the Bill by stating:

“For too long disabled people have had to rely on the courtesy and consideration of other drivers not to ‘take’ their reserved parking spaces, but we have all heard and seen news stories which depict the hostility other drivers now show each other when it comes to gaining a parking space. Therefore the age of just relying on politeness has ended and the age of enforcement has come.”

59. In oral evidence, Ryan McQuigg of Leonard Cheshire Disability said:

“By introducing an element of enforcement into parking, which is certainly a major issue, people's mindsets will change and disabled people will have more opportunities.”¹⁶

60. The Glasgow Centre for Inclusive Living’s written evidence recognised that the Bill will not change the current system of enforcement but that it “...will lead, hopefully, to a reduction in the misuse of these places.”

On-street disabled persons’ parking places

61. The key proposals in the Bill regarding on-street disabled persons’ parking places are:

• removal of local authorities’ right to designate permanent advisory disabled persons’ parking places;
  
• a requirement for each local authority to conduct a one-off audit of existing on-street disabled persons’ parking places, within 12 months from the date of the Act coming into force, to establish whether they are all necessary;
  
• following the audit those advisory parking places deemed unnecessary would be removed;
  
• following the audit the local authority would begin the process of obtaining a designation order for all the spaces deemed necessary, with the aim of making them all into enforceable parking places;
  
• following the initial designation of enforceable parking places any blue badge holder owning a suitable vehicle registered at their home address who does not benefit from an enforceable parking place can apply to the relevant local authority for a new on-street disabled persons’ parking place. The local authority would then be required to establish whether the applicant qualifies for a disabled persons’ parking place and, if so, to identify whether there is a suitable space for the creation of an on-street parking place for that applicant; and
  
• if there is a suitable space then the local authority must apply for a designation order to designate that space as an enforceable parking place. In the meantime the authority can designate the space as a temporary parking place until the designation order is obtained.

Advisory vs. enforceable disabled persons’ parking places
62. A number of local authorities commented in written evidence about the relative merits of advisory and enforceable parking places.

63. North Ayrshire Council noted that the Bill’s proposals would make an impact by responding to concerns raised by disabled drivers and would be welcomed by disabled people in its area. On the other hand, East Renfrewshire Council stated that Blue Badge holders have generally accepted the arrangements for advisory bays and there have been very few complaints.

64. Highland Council believed that existing powers are sufficient and would like the use of these powers to remain optional.

65. Aberdeenshire Council stated that the present system of providing advisory reserved spaces outside the homes of disabled residents who comply with the relevant criteria has worked well for as long as the system has been in place.

66. West Dunbartonshire Council has already obtained orders for all on-street disabled persons’ parking places, estimated at 600 bays. However, to comply with regulations and the requirements for signs, there are additional costs. It also noted that such parking places may only be used for a short duration requiring removal at further additional cost. In its experience, making all disabled persons’ parking places enforceable may not best serve the community. It argued that the flexibility of being able to establish an advisory bay within a few days should not be lost.

67. A number of local authorities also suggested an alternative approach to the proposals in the Bill, and this is considered later in the paper.

Temporary bays as a result of new process for promoting designation orders
68. A number of local authorities, in addition to West Dunbartonshire Council, were in favour of advisory bays because of their flexibility..

69. North Ayrshire Council pointed out that promoting a designation order is a lengthy process, and that “they are therefore not commonly used in quick response situations”.

70. East Renfrewshire Council said that instead of waiting a matter of weeks to establish an advisory bay, it would take months before the designation order is made for an enforceable bay. Further, the designation of the bay would be open to public objection and the time taken to process such objections would impact on staff resources to carry out the work. There would be further cost implications to promote the order.

71. Responding to this concern about flexibility, and concerns about the potential impact of applicants waiting longer for a parking place, Jackie Baillie MSP, in a letter to the Committee, told the Committee that:

“The Bill provides for a temporary bay to be put in place as soon as the local authority is required to start the statutory procedure to make an order. Local authorities are therefore able to install such bays in exactly the same timescale as they currently provide advisory ones…Existing advisory bays will remain in place until the end of the order making process, to make them enforceable, unless they are inappropriately sited.”¹⁷

72. Other local authorities raised different concerns regarding the proposal in the Bill to establish temporary bays.

73. Angus Council and the City of Edinburgh Council felt that automatically designating a parking place before the statutory procedure is complete may prejudge the proposed order. Angus Council commented that this could affect valid objections, and further that it could cause distress to the disabled person if an order is denied.

74. Falkirk Council felt that this proposal could lead to confusion over which bays are covered by a designation order and which are not, and that potentially this could make enforcement difficult for traffic wardens and the police.

75. Perth and Kinross Council described this proposal as a contradiction in the Bill, as the temporary bays are essentially advisory bays. It suggested that the establishment of temporary bays goes against the ethos of the Bill, which is to ensure that all bays are enforceable. It argued that there will be advisory bays in existence for up to a year and it may be that if objections are received during the TRO procedure the bay may have to be removed involving further expenditure to the council and angst to the disabled person.

Making all advisory on-street parking places enforceable
76. Some local authorities expressed concern about the Bill’s aim to make all advisory parking places on street, i.e. residential bays, legally enforceable.

77. A number of local authorities commented in written evidence on the practicality of enforcement. Their concerns included:

• raised expectations that all bays would be enforced;
  
• the difficulty in enforcement given disparate location of bays;
  
• the potential need for increased resources, in terms of police and traffic wardens, or parking attendants where enforcement has been decriminalised.

78. The City of Edinburgh Council and Glasgow City Council, for example, were concerned about the raised expectations on the part of disabled drivers in relation to enforcement, and that these expectations could not be met from current resources.

79. Highland Council, Perth and Kinross Council and Aberdeenshire Council noted that the geography of their areas would create difficulties in terms of staff being able to enforce bays in residential areas.

80. In addition, North Ayrshire Council and Highland Council indicated that some residents will, over time, move away or die, which would mean that parking places which had been established near their homes would not be available for general parking until the order was revoked. North Ayrshire Council suggested that consideration should be given to limiting the duration of designation orders.

Auditing existing advisory bays and promoting designation orders
81. Under the Bill’s provisions, local authorities will be required to carry out an audit of existing advisory parking places and establish whether they are necessary. Those not necessary will be removed, while the process of obtaining a designation order will be commenced for all the parking places found to be necessary.

82.Several local authorities have concerns with this proposal in terms of the scale of the task and the resources it will require.

83. Angus Council suggest that the recording of locations for advisory bays is ‘generally patchy’, and that identifying all existing advisory on street parking places will have significant resource implications for local authorities. In East Renfrewshire, all but two on street disabled persons' parking places are advisory, and records have only been kept for 12 years. The Council is concerned about the additional costs and staff resources to carry out this task, and state that abuse could continue due to a lack of police enforcement resources. Highland Council argue that making their 300 advisory parking places enforceable, with the associated objections and potential hearings would be a strain on resources which is not justified by the level of abuse.

84. West Lothian Council commented that “this one-off exercise would require the promotion of traffic regulation orders and there is a risk of a significant number of objections to these orders which would slow the process, increase costs and could create a considerable amount of local animosity, to the detriment of existing blue badge holders.”

85. Stewart Stevenson MSP, the Minister for Transport, Infrastructure and Climate Change, in his oral evidence to the Committee, said:

“I sound a cautionary note on identifying advisory bays, however. We need to remember that some of the legislation goes back a considerable period of time. Several local government reorganisations have also taken place during that time, and, in other policy areas, clear record keeping has not adequately transferred from one local authority to another.”¹⁸

86. The Minister also said:

“My initial reaction—which is not one on which I would take a firm, committed position—is that 12 months is ambitious. I am not just coming at that from a cost point of view as, to be blunt, there is a practical challenge in simply completing the task. That is one of the issues that the committee will consider and that Jackie Baillie, as the sponsor of the bill, will wish to take into account. If Ms Baillie were to consider that a different timescale could be used in the interest of greater flexibility, it is likely that I would be able to support that.”¹⁹

87. The Committee, while taking into account the difficulties which local authorities will have in conducting an audit of their existing advisory disabled persons’ parking bays, nevertheless agrees that a year after the Act comes into force should normally be a reasonable length of time for completion of this exercise.

88. The Committee is of the view that, where exceptional circumstances prevent this exercise being completed in time, then the Minister should be able to approve an extension.

Off-street disabled persons’ parking places

Private car parks
89. Disabled persons’ parking places in private car parks tend to be advisory and are not legally enforceable: their availability to disabled persons depends on the courtesy of other drivers, not to park in them. In privately owned car parks, the use of disabled persons’ parking places is a contractual matter between the provider and user, and the conditions of use and charges must be clearly displayed.²⁰

90. The Local Authorities’ Traffic Regulation Orders (Procedure) (Scotland) Regulations 1999/614 allows local authorities to promote TROs in private car parks at the request of, and in agreement with, the landowner. This allows for the creation of enforceable parking places within private car parks, including disabled persons’ parking places.

91. The Bill would place three distinct duties on local authorities with regards off-street disabled persons’ parking places.

92. Each local authority would be required to identify every advisory off-street disabled persons’ parking place within its area which existed at the date the provisions of the Act came into force. Where such spaces are provided directly by the authority, or in car parks managed/provided for the authority by a third party, then they would be required to begin the designation order process within 12 months of the Act coming into force. If the parking places are within a private car park then the local authority would be required to attempt to enter into an agreement with the owner to allow for the creation of enforceable disabled persons’ parking places within the car park. If the owner agrees then the local authority must begin the designation order process.

93. Where local authorities have failed to secure agreement to pursue designation orders for new and existing advisory off-street parking places they must, at least every two years, make another attempt to secure agreement to create enforceable parking places for those sites.

94. Disability organisations, in their written evidence, commented on the importance of enforceable parking places in private car parks.

95. Ecas Ltd said that its clients reported that the misuse of advisory parking places in private car parks is the main barrier to making car journeys, “In our view, the unenforceability of advisory disabled off-street parking places on private land is the key issue for the Bill to address”.

96. Leonard Cheshire Disability stated that if parking spaces are to be enforced, then they must be “universally adopted, including “private” car parks. If these places were not included in the Bill it would add to further social exclusion felt by many disabled people.”

97. A number of local authorities raised concerns about the practicality of identifying private car parks and then entering into negotiations with owners. There were also concerns regarding resources and who will have responsibility for enforcement.

Identifying car parks
98. Highland Council argued in its written evidence that significant resources would be required to audit private car parks, contact owners and agree with them to promote orders.

99. Perth and Kinross Council summed up the situation as follows:

“It appears that councils are expected to send staff out to walk the streets to seek out private car parks: determine if there are any disabled parking places; determine who the owners are (sometimes no mean feat); determine if the public have access to the car park, enter into negotiations to take over enforcement of the disabled space(s) and either promote a TRO or go back to the owners every two years to try to reach an agreement. If an agreement is reached there will be the ongoing enforcement of the bay(s) to consider.”

100. Glasgow City Council stated that it is not in a position to identify all privately owned car parks in Glasgow, and that the staffing and financial resources required to do so would be substantial. It also argued, “given that supermarkets, for example, can already request us to enforce their spaces, we strongly doubt that a letter from us offering to do so would change their position - unless the enforcement was funded by us, which is clearly outwith our resources.”

101. In her oral evidence, Jackie Baillie MSP said that:

“Turning to the burden that local authorities have identified, I hope to reassure members that it is not a burden at all. The first reason for that is that local authorities can identify private car park owners. Let me be clear—I am talking about private car parks to which the public have access. I have no interest, nor does the bill, in office car parks or car parks solely for employees, which are regulated by the Disability Discrimination Act 1995. We do not propose to change that.”²¹

102. The Committee agrees that it is reasonable to expect that local authorities will be able to identify owners of private car parks in their areas, to which there is public access.

Negotiating with private car park owners
103. Aberdeenshire Council said in its written evidence that it was unclear what is meant by ‘negotiate arrangements’ with private car park owners. Falkirk Council wished to know whether they would need to negotiate with private car park owners who already have their own enforcement system.

104. West Lothian Council was concerned about the potential wasted effort of negotiating with car park owners when there is little incentive for owners to agree to make bays enforceable. It was concerned about who will be responsible for enforcement, and that the increased number of places would put increased pressure on already stretched enforcement resources.

105. Jackie Baillie MSP, in her oral evidence, said that:

“…the sending out of a letter advising private car park owners that a procedure existed, whereby the local authority could move a traffic regulation order and make their bays enforceable, would satisfy the terms of the bill. However, the bill is not prescriptive—if Asda and other car park operators want to continue to carry out their own enforcement, that is very much a matter for them.”²²

106. In her letter to the Committee, she clarified that the provisions in the Bill applied only to owners of car parks to which the public have access. It is only these owners that local authorities are required to contact. The Bill is non prescriptive as to the degree of contact required. A simple letter reminding owners of the importance of meeting their disabled customers’ needs, stating that if they want to make their bays enforceable the local authority can help, would suffice. The Bill does not require local authorities to do anything more than this.²³

107. Ryan McQuigg of Leonard Cheshire Disability said, in oral evidence:

“The fact that local authorities do not even seem to know that businesses are willing to carry out enforcement highlights the need for them to talk to those businesses. There is a tipping point in regard to enforcement: if a couple of big businesses do it, the rest will follow.“²⁴

108. The Committee endorses the provisions of the Bill which would require local authorities to seek to negotiate enforceable parking arrangements with owners of private car parks to which the public have access. It is, however, of the view that the procedures for the negotiations should be devised in such a way that they are not unduly burdensome.

Enforcement by private car park owners
109. In their written evidence, some local authorities felt that private car park owners should take responsibility for enforcement of disabled persons’ parking places in their car parks.

110. Perth and Kinross Council referred to the fact that many private car parks are already patrolled and enforced by private parking enforcement companies. It suggested it may be better to put the onus of enforcement on car park owners, potentially by existing disability legislation.

111. South Lanarkshire Council suggested that it should be a matter for private car park operators to enforce the restrictions.

112. East Renfrewshire Council suggested that enforceable disabled persons’ parking places in private car parks ‘could be workable but only if the operators are willing to police it themselves and not the Local Authority or Police Force’.

113. In oral evidence to the Committee, supermarkets and car park operators expressed a preference for being able to continue with their own schemes. Graeme Taylor, of National Car Parks Ltd, said:

“As a result of the parking enforcements that we put in place approximately nine months ago, our business has recently noticed a decline in the number of people parking in disabled bays. We do not think that the bill will change the situation. If the council or the police enforced bays…that would have a negative impact on our customers, as we would not be able to control the situation properly within our remit.”²⁵

114. Kelvin Reynolds of the British Parking Association told the Committee:

“In a customer service environment, the landowner is more likely to want to maintain the customer relationship, whereas a local authority will be concerned with traffic management.”²⁶

115. He went on to say:

“The other challenge with local authority enforcement of private car parks is that it would immediately put the whole process into a legislative framework that includes adjudication. The following point has probably been referred to. In that environment, more PCNs are likely to be issued, because discretion does not exist.”²⁷

116. He gave, as an example:

“…Poole, on the south coast, is an example. There is a traffic regulation order on the car park and the whole thing is managed by the local authority, including any disabled spaces.”

“There is often a conflict between the official process of issuing what is now a statutory penalty charge notice and the will of the store manger to treat a customer differently for whatever reason.”

“We find that there is always conflict between the management company that issues the ticket and the local store manager who must deal with the customer.”²⁸

117. Supermarkets and car park operators were not necessarily opposed to the Bill, however. Guy Mason of ASDA told the Committee in oral evidence:

“People with good schemes should say, "I see the point of what the local authority is doing. It will be no additional cost for us, and we should work with the local authority to make things work." The majority of our customers would welcome such an approach.”²⁹

118. He went on /to say:

“…it would give local authorities extra resources. They would be able to say that Asda and other supermarkets that follow a code of conduct are dealing with the matter and to target their limited resources at other places that really need it. Such an approach would give us flexibility and return resources to local authorities.³⁰

119. Graeme Taylor of the NCP stated in oral evidence:

“As an off-street car park operator, we support the bill 100 per cent because it would work in the environment in which we operate”.³¹

120. Euan Page of the Equality and Human Rights Commission commented that:

“…we are, to some extent, pushing against an open door. There is no resistance to the bill's proposals among many private sector owners of parking spaces who have many disabled customers.”³²

Supermarkets - Good practice
121. The Policy Memorandum refers to the success of ASDA which is now enforcing disabled persons’ parking places using a private enforcement company. Guy Mason, public affairs manager, described the scheme to the Committee in oral evidence:

“Asda has approximately 360 stores across the UK, 45 of which are in Scotland. Every week, each store is visited by 60,000 customers, with 40,000 to 50,000 cars passing through.

For quite some time now, customers have been complaining about the abuse of disabled and parent-and-child parking spaces. Estimates suggest that we used to receive 20 recorded complaints a week about those parking spaces. When we took into account comments made to colleagues on the shop floor that are not recorded, the number rose to about 50 to 100 complaints per store per week.

…we put up very clear signs that set out parking terms and conditions and stated that anyone using a disabled bay must clearly display a blue badge in their vehicle and that anyone using a parent-and-child bay should have in their vehicle a child seat or booster seat for children up to 12. Within seven days of putting up the signs and after bringing in attendants who work at each store for 12 hours a month on a rotational basis, we improved the availability of both types of bay by more than 60 per cent. In fact, even though the wardens do not work in our car parks all the time, availability has continued to improve. I suppose that a good analogy is with a public highway; parking attendants do not have to be present all the time to act as a deterrent.

Obviously, as a retailer, we did not want to turn customers off shopping with us by having attendants jumping out of the bushes and issuing parking tickets. We simply wanted to ensure that there was a clear deterrent.

In a major piece of customer perception work that we then carried out, the scheme received a 93 per cent customer endorsement rating, which is probably one of the higher ratings for any of our trials. It was clear that our customers felt strongly that this was the right thing for Asda to do.

One interesting point is that, with regard to the 60 per cent improvement in the availability of bays, we issue on average only two tickets per store per week across the UK. The figure increases in Scotland to three tickets per store per week, which reflects the fact that, on average, there is slightly more abuse of bays in stores in Scotland than there is in stores in England, Wales or Northern Ireland.

The £60 penalty fine is split 50:50 between Asda and Town and City Parking, and we donate our half to Tommy's campaign and Motability. So far, we have been able to donate £120,000 to those charities through the scheme.

…The scheme costs about £400 to £500 per store per year.” ³³

…We need to be able to deal with customers on a case-by-case basis, so we would like to keep control over that.”³⁴

…We do not incentivise the attendants for the number of tickets they give out.”³⁵

122. In response to questions from Committee members about the legal status of ASDA’s enforcement methods, its representatives said that the scheme was covered by civil procedure under contract law:

"We take the position that these are penalty notices (rather than fines) levied for breach of conditions of parking which are advertised by signage and which are implicitly accepted by drivers who use the car parks.

We advertise the fact that people should not abuse disabled bays when they enter the car park, and that anyone who parks there accepts that. If they abuse the bays, they will receive what we call a civil penalty notice”.³⁶

123. The British Parking Association’s legal advice was that such notices can be pursued through the courts, and there are examples of that happening in England.”³⁷

124. A number of the written submissions referred to ASDA’s initiative. The City of Edinburgh Council suggested that exploring this approach could be a positive way forward. On the other hand, Leonard Cheshire Disability notes that while ASDA has led the way, other supermarkets have failed to follow suit and so there is a need for more regulatory powers when it comes to private car parks.

125. Jackie Baillie MSP, in her oral evidence, commented:

“I think that the committee has seen the best examples of people who have taken action; it has not seen those who have done nothing.”³⁸

126. The Committee notes the concern of the Finance Committee that there does not appear to be much evidence available regarding the willingness of private car park operators to participate in and cover costs for promoting and implementing orders in their car parks. Nevertheless, the Committee feels that the possibility that such procedures could be used, combined with the benefits to companies of such schemes as the ASDA scheme, indicates that the relevant provisions in the Bill could have a significant effect in reducing the occupation of disabled person’ parking spaces, by drivers who are not entitled to use them, in areas where they are most needed.

Car parks in new developments
127. Under the provisions of the Bill each local authority would be required to begin the designation order process for any disabled persons’ parking places to be created in new developments within their area. The designation order process should be started within three months of the date that the development is granted planning permission, or three months from the date the authority becomes aware of a development if it is permitted through a development order rather than through the direct grant of planning permission. Local authorities would be required to monitor development within their area so they can make timely contact with the developer/owner with a view to seeking agreement to the initiation of the designation order process to secure enforceable disabled persons’ parking places in all new developments where appropriate.

128. This proposal was referred to by a few local authorities in their written evidence. The City of Edinburgh Council wished to see further clarification on procedures which would apply to new developments. Perth and Kinross Council argued that “the requirement to start the TRO procedure for disability bays in a new car park within 3 months of planning permission is at odds with the 5 years which a developer has to start a development. This could involve councils in the promotion of TROs for sites which are not constructed for several years or even abandoned.”

129. The British Parking Association told the Committee:

“The DfT has produced a document called "Inclusive Mobility", which is all about transport provision for people with disabilities. It recommends that 4 to 6 per cent of spaces should be disabled parking bays, but that is only a recommendation.”³⁹

130. Inclusion Scotland, in its oral evidence, said that:

“Under the disability equality duty, local authorities should include disabled people in their planning processes. It is patently obvious that most local authorities do not do that—if they do, it is in a token way.”⁴⁰

131.Jackie Baillie, in her evidence commented that:

“Part III of the DDA, on the provision of access to goods, facilities and services, would obviously cover it. However, when someone seeks planning permission for a new development, should they, as a matter of good practice, engage in a dialogue about disabled parking and making it enforceable? Of course they should.”⁴¹

Costs and resources

132. It is expected that the main costs of the Bill will fall on local authorities. They will face set up costs in the first year of the Bill as they will be required to identify all existing advisory parking places for disabled people. The cost of this work will vary depending on the number of parking places identified. Local authorities will face ongoing costs to meet the requirements of the Bill, which will include implementing designation orders and altering road markings and signage. There may also be limited costs falling on the Scottish Government and the police.

133. The costs of implementing this Bill are difficult to calculate for two main reasons:

• There are no official figures available on the number of existing on-street and off-street advisory parking places. It is therefore not known how many places may require a designation order, or how many advisory places may need to be removed.
• The cost of implementing a designation order may vary between local authorities. There are differences in approach: by either implementing individual orders or by implementing orders in batches. The Financial Memorandum reports estimates from Fife Council that the cost of obtaining a designation order would be around £119 per parking place, and from West Dunbartonshire Council that it would be around £12.20 per parking place.

134. The Financial Memorandum estimates that the total national cost of implementing designation orders for all existing on-street advisory parking places is £1.7 million. This is based on an estimate that there are currently 14,000 on-street advisory parking places, and that an average cost per place might be £125. The Financial Memorandum suggests savings could be made if local authorities promote TROs in batches, rather than individually.

135. In terms of applications for new on-street parking places, costs are difficult to predict. However, the Financial Memorandum states that “these are not new costs as the local authorities would have been required to undertake broadly the same process to consider applications for advisory disabled persons’ parking places.” Additionally there will be ongoing costs with enforcement, but it is anticipated that enforcement will be ‘primarily reactive’.

136. For off-street car parks, where local authorities seek arrangements with owners to implement designation orders, costs may be covered as part of the negotiation.

137. Most local authorities suggested the costs estimated in the Financial Memorandum are an underestimate and that to fulfil the duties required by the Bill, further funding would be required.

City of Edinburgh Council
138. The City of Edinburgh Council suggested in written evidence that the estimated national total of £1.7 million to implement designation orders for all existing advisory parking places could be exceeded in Edinburgh alone.

Dundee City Counci
139.Dundee City Council commented that additional resources will be required to enable it to fulfil their duties under the Bill, and this will need to be addressed either in the Bill or by the Scottish Government.

Glasgow City Council
140. Glasgow City Council’s written evidence indicated that it is ‘…extremely concerned at the substantial additional costs to the Council of setting up and enforcing the new arrangements envisaged by the Bill (over £2m in set up costs alone in the first year)’.

141. Glasgow City Council said that to make its 4500 advisory residential parking places enforceable ‘the existing yellow painted bays would require to be removed and replaced with signs and white road markings to Traffic Signs Regulations and General Directions 2002 (TSRGD), at a cost which we have estimated at £2.1 million… We believe it is unreasonable to expect this authority to meet these substantial costs without additional funding from the Scottish Government.’

142. In oral evidence, Donald McKinven of Glasgow City Council explained :

“At the moment, the bays are advisory, and there is a courtesy marking. Providing mandatory bays would require us to remove the 4,500 existing bays and mark the mandatory ones in accordance with the regulations, which includes making the appropriate road marking and installing a pole and a sign. That is where our costs have come from and, as is demonstrated in our previous written evidence, they are a lot higher than was previously thought.”

“The drafting of the orders would also take considerable time and resources. Because the bays would become designated mandatory bays, they would have to be scheduled in the appropriate order, which would mean that we would have to dimension them on street, measure exactly where they would have to go and describe that in the order. I am sure that you appreciate that, with the number of bays that we have in Glasgow, that would take considerable resources. In our previous written evidence, we identified a need for two full-time officers for a year just to prepare the necessary paperwork.”⁴²

143. In further detail, he said:

“When we receive an application for an advisory disabled bay, we go on site, confirm the address and make sure that we can get the bay as close as possible to the individual's home. We do not consult the neighbours. When we agree to install the advisory bay, we simply mark it as well as we can for the individual.

When it comes to a mandatory bay, we have to follow the procedure that is set out in the Local Authorities' Traffic Orders (Procedure) (Scotland) Regulations 1999 (SI 1999/614). That involves our preparing an order, which we are required to put out to primary consultation with the likes of our colleagues in the police. Thereafter, we have to advertise it formally in a newspaper and give people an opportunity to object to it. A period of time is allocated for that. If we get objections, we have to try to deal with them to get them withdrawn. If they are not withdrawn, another procedure comes into play, which might well involve a reporter.

The length of the process for a mandatory bay varies. If there are no objections, it takes a short time—perhaps three to six months—but when there are objections and we have to try to get them withdrawn, it can take between nine months and a year.”⁴³

…The Traffic Signs Regulations and General Directions 2002 (SI 2002/3113) specify how to mark mandatory bays and are clear that they have to be white. In Glasgow, we agreed to mark advisory disabled bays as a courtesy. That is a throwback to the time before local government reorganisation. Because such bays are not covered by the legislation, they cannot conform with the TSRGD and therefore cannot be white, so we had to mark them in another colour. That is why we marked them in yellow.”⁴⁴

…That means that we will have to remove the paint that we have used for the temporary bay before we put the mandatory bay in place. There are practical issues that must be dealt with.”⁴⁵

…When we considered the issue of costs for a second time, we looked in detail at the cost of removing the existing advisory bays, which works out at about £113 per bay. The cost of remarking is about £85; the manufacture and siting cost for each sign, foundation and pole is about £260. By multiplying that cost by 4,500, we arrived at the figure of just over £2 million.”⁴⁶

144. The Committee notes here the oral evidence of John Donaldson of the Association of Chief Police Officers in Scotland (ACPOS) that there is nothing in the regulations to prevent white paint being used.⁴⁷

Highland Council:
145. Highland Council told the Committee, in its oral evidence:

“Highland Council has about 300 advisory bays. In a normal year, we process about 40 or 50 traffic orders. To make all the bays enforceable, we might have to process 300 traffic orders in a year. We have two full-time staff who do advisory 20mph speed limit orders, and they manage to process about 40 to 50 orders per year. If the new orders take a similar time, it would take about 12 person-years of staff time to process the ones for advisory bays on roads and in public car parks, without even considering the ones in private car parks.”⁴⁸

…Doing the measurements across a widespread network will be a much greater burden on staff time than doing them in a compact urban area.

…The basic form of the order is not the problem; the problem is the scheduling, which is the detailed description of each individual space, which must be dimensioned and referenced to a point on the road so that it can be identified. That is the part that takes the time. The other part that takes the time is the consultation and discussion if people object to the bays. We must go out and see such people, argue with them and try to persuade them. If we cannot persuade them, we must publish the order for objections to be made, then hear the objections in council. That will be an onerous process.”⁴⁹

Perth and Kinross Council
146. Perth and Kinross Council, in written evidence, stated that the estimated cost of £1.7 million for obtaining designation orders for on-street paring places ‘is not an inconsiderable sum of money for councils to find from already stretched budgets.’

South Lanarkshire Council
147. South Lanarkshire Council’s written evidence states that it has recently carried out surveys which show there are 1000 advisory on-street parking places near individual residential properties, and an estimated 200 advisory off-street council controlled public parking bays.

148. It said that the costs of initial survey work at each individual site, preparation of works instructions and schedules for a TRO, as well as the supply and erection of sign poles and restriction plates, burning out existing road markings and marking the bay in accordance with the prescribed road marking is estimated at over £1m.

West Dunbartonshire
149. Jackie Baillie told the Committee in her oral evidence that, in response to her consultation prior to the Bill’s introduction, West Dunbartonshire had said that it had been able to promote orders for 410 advisory bays at a cost of £5,000, i.e. £12.20 per bay.⁵⁰

West Lothian Council
150. West Lothian Council’s written evidence stated that it believed the Financial Memorandum significantly underestimates the cost implications of the Bill to local authorities. It estimated that to convert their 700 existing advisory parking places to enforceable ones would cost around £350,000, which could not be met within existing resources. It said, ‘extrapolating this across the whole of Scotland would suggest that the cost of £1.7million for the one-off review exercise quoted in the Financial Memorandum significantly underestimates the true cost by as much as a factor of ten’.

Other Councils
151. Some local authorities (North Ayrshire Council, East Renfrewshire Council, Midlothian Council and Falkirk Council) suggested that without additional funding and resources, parking places will not be properly enforced and the abuse of disabled persons’ parking places will continue.

Other witnesses
152. The Scottish Disability Equality Forum also reported concerns about costs in its written evidence, stating ‘this area appeared very weak and proved to be a little concerning.’

153. ACPOS expressed concern about the increased burden on police resources in locations where enforcement has not been decriminalised, and referred to East Renfrewshire Council which alone has over 1000 residential bays.

154. In its written submission the Equality and Human Rights Commission (EHRC) argued that there should be no additional administrative burdens on local authorities as a result of the Bill, because this should be part of their ongoing work under the Disability Equality Duty.

155. It said in oral evidence:

“The commission recognises that some local authorities have expressed concerns over the administrative and cost implications attached to designation and enforcement under the bill. We argue that those concerns can be mitigated by development of an approach that prioritises and tackles the most persistent problems.”⁵¹

…Instead of saying that the issue is entirely separate from the wider job of day-to-day management and enforcement of traffic duties, authorities should ask how much of the cost could be borne by rolling three-year budgets as part of overall traffic management enforcement strategies.”⁵²

…“It is surely not a priority for councils to consider immediately removing advisory bays that are being used and not abused. The priority for councils may lie elsewhere—they may want to take action on advisory bays that are being abused by non-disabled drivers.”⁵³

Scottish Government
156. Stewart Stevenson MSP, the Minister for Transport, Infrastructure and Climate Change told the Committee in his oral evidence that he shared concerns about the uncertainty of the cost of implementation of the Bill.⁵⁴ He indicated that the Scottish Government was not intending to make a commitment to put financial resources into the start-up costs. ⁵⁵

157. He said:

“We already provide £11.1 billion to the local authorities.
The Government is not only providing record sums to local authorities but allowing them to keep the 2 per cent efficiency savings as an additional source of funding, whereas previously efficiency savings had to be returned to central Government. Therefore, we do not consider at this stage that the bill will change the financial relationship between central Government and local government.”⁵⁶

Member in charge of the Bill
158. Jackie Baillie MSP said in her letter to the Committee:

“The Bill does not prescribe how local authorities should carry out the work, that is left to them to determine. It would indeed make sense for them to begin in areas where abuse is most prevalent.”⁵⁷

159. She continued:

“With regard to costs, I would echo the Minister suggesting that the Committee look closely at the costs provided by Glasgow City Council and why Glasgow believe it will cost them so much more per bay than Fife Council anticipate it will cost them. For virtually every activity Glasgow’s costs exceed those of other local authorities provided to me and which I have passed on to the committee.

Under the Bill before you the costs themselves could be spread over 3 years. Year 1 would see administrative costs for identifying the bays; Year 2 would see further administrative costs arising from the promotion of the orders while costs for signage etc could be spread between Year 2 and 3”.⁵⁸

160. The Committee notes that the Financial Memorandum which accompanies the Bill sets out how the estimated costs were arrived at:

“96. Fife Council estimates the cost of promoting and implementing an order to be in the region of £119 per parking place. The Council has 2527 street advisory parking places and estimates it will cost £300,000 to make these parking places enforceable. To make all its 410 disabled street parking places enforceable cost West Dunbartonshire Council £5000, an average of £12.20 per parking place. However, that local authority estimates that once installation costs and signage requirements are taken into account the average cost per parking place ranges from £100 to £500. It now has no advisory disabled street parking places and undertook this exercise within existing resources.

97. Data covering the number of existing advisory disabled street and off-street parking places across Scotland is not held nationally, nor is any information available on national costs to make a parking order. Twenty local authorities responded to a questionnaire by Jackie Baillie with details of numbers of advisory parking places in their areas disclosing a total of 9383. If that total is extrapolated nationally based on population figures in 2006 this suggests that there are around 14,000 advisory disabled street parking places throughout Scotland.

98. While some parking places in more remote areas will be more costly to create there is support for the Fife Council figure of £119 from the experiences of West Dunbartonshire Council. Taking an average cost slightly higher to provide for remoter locations where there will be fewer parking places of £125 per place suggests a maximum total cost nationally of £1.7 million.”

161. Jackie Baillie told that Committee in her oral evidence that:

“We consider our figures to be robust. The financial memorandum states clearly that there is a margin of uncertainty. I have asked the Scottish Government parliamentary questions about the issue ad nauseam, and have been met with similar responses—that it does not collect the information centrally.”⁵⁹

162. She said that:

“In August 2006, we wrote to all 32 local authorities in an attempt to ensure that we got accurate information. My view is that the figure of £1.7 million stands. The committee will want to consider the obviously opposite view that has emanated from Glasgow City Council. I simply say that if Dundee City Council thinks that it can convert 1,000 advisory bays into enforceable ones at a cost of £196,000, we must ask why South Lanarkshire Council, which has only 100 more bays than Dundee, thinks it will cost £1 million and why Glasgow City Council, which has 4,500 advisory bays, thinks it will cost £2.1 million. There are huge discrepancies. Local government could learn from best practice.”⁶⁰

163. She went on to say:

“West Dunbartonshire Council took less than a year to identify 410 advisory bays at a cost of £5,000—£12.20 per bay; Glasgow City Council gave the figure of £137,544 to promote orders for 452 bays, which works out at £30.21 per bay. There is a disparity from the start of the process. Perhaps we can learn something from how West Dunbartonshire Council went about identifying its bays, which might make the costs more reasonable for other local authorities. I know that some local authorities, such as West Dunbartonshire Council, batched all the bays in the one order, which is much more cost effective. I think Inverclyde Council does that, too. Perhaps Glasgow City Council dealt with all the bays through separate orders.

I remind you of the example that whereas in Highland it would take two men 12 years to identify their 400 or so bays, in Glasgow it would take two men a year…That is one cost difference; I will explore others. In Glasgow, for example, it is estimated that the removal of existing road markings will cost £113, but that cost is unnecessary and arises only because Glasgow insists on marking advisory bays in yellow paint. There is nothing to prevent it from following other local authorities and marking bays in white. Indeed, one should query why the paint needs to be removed and cannot simply be painted over. Some local authorities paint over existing markings and use temporary markings to complete bays.

Glasgow has said that the paint for repainting will cost £66, whereas in Perth and Kinross Council it will cost £35. I hope that members will forgive me—the cost of paint is not my specialist subject and, try as I might, I cannot explain the wide disparity with regard to Glasgow, but these are the issues that such comparisons throw up.”⁶¹

164. In explaining the process which she used to establish costs, Jackie Baillie said:

“Some local authorities had information, others did not. Some had information about the number of advisory bays they had, some were very clear that the figure was an estimate and others said that they could not tell us. We were trying to get the best evidence we could, so that we could arrive at the most reasonable estimate.”⁶²

165. Discussing the Minister’s comments, Jackie Baillie said:

“The Government is right not to offer a blank cheque and to want to look at the variations between local authorities, and I encourage it to do so. However, it is not for me as the member in charge of the bill to prove the accuracy of the figures; it is for me to prove that I have used a reasonable method in arriving at a calculation of a figure that stands up to scrutiny in the light of day…I would welcome it if the Government opened a dialogue with COSLA, as it does on many occasions, to consider the details of the bill.”⁶³

166. The Committee is mindful of the views of the Finance Committee that there is an unavoidable level of uncertainty surrounding the figures in the Financial Memorandum. It accepts the view of the Finance Committee that a more accurate picture of the potential costs of the Bill could have been provided if, during the consultation, specific questions on the financial implications of the Bill had been asked. It agrees with the conclusion of the Finance Committee that the overall estimate of £1.7 million for promoting and implementing orders across Scotland is subject to a significant degree of doubt. On the basis of the written and oral evidence which this Committee has received and considered, this Committee agrees with the Finance Committee’s conclusion.

167. The Committee agrees with the member in charge of the Bill that some of the higher estimates of the work and associated costs might be avoided by adopting best practice. Only a thorough examination of the probable costs of implementing the Bill, across all local authorities, could give an accurate picture. The Committee expects that, if the Bill is passed, the Scottish Government will, in conjunction with COSLA, negotiate the costs of implementing its provisions, in such a way that it is not unduly burdensome on local authorities.

Alternative approach

168. In written evidence, East Renfrewshire Council, South Lanarkshire Council, North Ayrshire Council, Perth and Kinross Council, West Dunbartonshire Council, East Lothian Council and Glasgow City Council all argued that a simpler method of legally enforcing all on-street disabled persons’ parking places would be to allow the designation of enforceable disabled persons’ parking places in the manner that Bus Stop Clearways are designated, as set out in Schedule 19 of the Traffic Signs Regulations and General Directions 2002 (TSRGD). According to the local authorities, this would allow local authorities to respond quickly to requests for enforceable parking places outside people’s homes, without the need to promote a designation Order for each location. It is also argued by the above local authorities it would reduce future maintenance costs.

169. Richard Guest of Highland Council explained in oral evidence that:

“That would be much more straightforward, as it would give us the power to make a bay enforceable simply by putting the approved road markings down on the road, and would avoid the necessity for progressing a traffic order. It is the traffic order part of the process that my council is concerned about, not painting the markings on the road and putting the signs up, which is relatively straightforward.

For example, if traffic orders are used, each time someone moved house or died, a traffic order would have to be revoked and, possibly, another order would have to be made. However, road markings made under the 2002 regulations could simply be removed, or put in place, without having to refer to anyone or go through a legal process. That would be a straightforward way of doing it.”⁶⁴

170. Glasgow City Council agreed:

“There is no pole for an advisory bay; there is just the marking. A lot of people have said that the sign can go on existing street furniture. However, the only street furniture that you will find in residential areas is lampposts, and there would not necessarily be a lamppost outside the house where we wanted to put the sign. That is why we keep coming back to the TSRGD. It would be beneficial to have provision written into it to remove the need to promote an order. An amendment could be made, so that there just had to be a road marking, instead of a sign and pole, which would require to be manufactured and maintained.”⁶⁵

171. The Committee considered the question of whether this approach would require a change to UK legislation by amending the TSRGD.

172. The member in charge of the Bill was clear that the power to amend regulation 10 of the TSRGD to include different signs etc is a reserved matter. She advised the Committee that none of the powers under which the 2002 Regulations were made are devolved. Nor have any of the powers been made the subject of an order under section 63 of the Scotland Act. Scottish Ministers therefore have no powers to make such orders instead of the Secretary of State for Transport (as was in 2002) or to make them concurrently or with the agreement of that Minister.⁶⁶

173. Even if the power to amend the TSRGD was devolved, written evidence from Glasgow City Council suggests that a drawback of this approach would be that parking places could be designated without consultation with local residents.

174. The Committee notes that, irrespective of whether the alternative approach would be viable, the legislative changes which would be required do not fall within the competence of the Scottish Parliament.

Disability discrimination legislation

175. Owners of car parks, whether public authorities or private owners, tend to be service providers, for example the car park may be at a supermarket, public library or hospital. Service providers have duties under Part III of the Disability Discrimination Act 1995 (as amended) to make ‘reasonable adjustments’ to ensure that disabled people can access services. Since 1 October 2004, where a physical feature makes it impossible or unreasonably difficult for disabled people to make use of services, service providers have to take reasonable steps to:

• remove the feature; or
• alter it so that it no longer has that effect; or
• provide a reasonable means of avoiding it; or
• provide a reasonable alternative method of making the services available.

176. If a service provider does not comply with the duty to make reasonable adjustments, and it cannot be justified, the provider will be committing an act of unlawful discrimination. This means a disabled person will be able to make a claim under the Act by bringing civil proceedings through the Sheriff Court. Court action must be brought within six months of the alleged discrimination⁶⁷.

177. Section 1 of the Bill provides that:

“A local authority must promote proper use of parking places in its area that are designated for use only by disabled persons’ vehicles.”

178. The Policy Memorandum states that this duty will require local authorities proactively to discourage the misuse of disabled persons’ parking places. The Bill does not specify how local authorities should carry out this duty, but there are some examples cited in the Policy Memorandum. These include:

• training staff to make them aware of the issue;
• additional signage;
• dvertising or poster campaigns;
• encouraging people to report instances of abuse and providing contact numbers for law enforcement; and
• targeting areas where abuse of disabled persons’ parking places is most common.

Disability Equality Duty
179. Public bodies in Scotland are also subject to the Disability Equality Duty, which came into effect on 4 December 2006, as a result of the Disability Discrimination Act 2005. The general duty requires all public authorities to actively look at ways of ensuring disabled people are treated equally. Most public authorities are also subject to specific duties which requires them to publish a disability equality scheme and set out how they are going to carry out the general duty.

180. The duty requires that every public authority shall, in carrying out its functions, have due regard to the need to:
promote equality of opportunity between disabled persons and other persons;

• eliminate discrimination that is unlawful under the Act;
• eliminate harassment of disabled persons that is related to their disabilities;
• promote positive attitudes towards disabled persons;
• encourage participation by disabled persons in public life; and
• take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons.

181. Liz Rowlett of the Scottish Disability Equality Forum said in oral evidence:

“Private car parks outside supermarkets and shops should be covered by the DDA but unfortunately in the past it has always been up to disabled people to mount a challenge, and they do not have the financial resources to do that. I suggest that, where it comes under a local authority's remit, it should be part of a local authority's disability equality scheme action plan to find out from businesses what provision they have made for disabled parking and how they intend to enforce it. One of the problems with the lack of enforcement is that people will not take responsibility for the issue. I hope that the bill manages to redress that.”⁶⁸

182. Jackie Baillie told the Committee:

“I would argue that there is not a legislative overlap, and that the bill's provisions would offer support and encouragement to help owners of private car parks meet their duty under part III of the DDA.”⁶⁹

Private car parks – organisations

183. In oral evidence the Equality and Human Rights Commission raised the question of car parks adjoining organisations working with people with disabilities:

“I would not characterise it as a weakness, but since we submitted our written evidence, concern has been expressed to us about section 5. It would be interesting to hear the bill team or others comment on it. The concern is that the definition of "qualifying person" in section 5(8)(b) does not capture advocacy and advice organisations that work principally with disabled people. Such organisations might be concerned about ensuring that there are enough designated parking spaces at the front of their places of business. Examples include the integrated living centres, Govan Law Centre and other organisations that do a lot of work around information and advice.”⁷⁰

184. Jackie Baillie, in her oral evidence, explained to the Committee that:

“…such organisations can apply to their local authority for a designated disabled person’s parking bay. The Bill does not alter that position.

The local authority would be able to provide a bay using existing powers under the 1984 Act. In making their decision the local authority would, amongst other things, consider demand, local parking provision and the nature of the patrons using the facilities in the areas.

If such a car park was off-street and owned by the organisation, under the Bill, the local authority would be required to take the initiative. They are required to contact the organisation to offer to make arrangements that could lead to an enforceable bay being created.”⁷¹

conclusion

General principles of the Bill
185. The Equality and Human Rights Commission in its written evidence supported the Bill, indicating that:

“The Commission believes that the Bill represents a straightforward, practical and cost effective means of making a real difference to the lives of disabled people across Scotland, removing a persistent barrier to disabled people’s participation on society.”

186. It said that:

“The Bill therefore underpins the principle of independent living – that disabled people should have the same autonomy, dignity and choice in where and how they live as non-disabled people.”⁷²

187. The Scottish Government in its memorandum to the Committee dated September 2008, said that it supported the objectives of the Bill with the caveat that more discussions will require to be undertaken with COSLA and local authorities to ascertain the level of work required to comply with the Bill’s provisions. The Scottish Government stated that it would want to hear their views about the costs of operating the legislation, whether the 12 months timescale is realistic and about the enforcement of disabled parking places.⁷³

188. Jackie Baillie MSP said to the Committee:

“The bill is a simple measure that uses existing road traffic and parking measures. It assists local authorities in their approach to managing disabled parking. It is important to set the proposal in a wider context. We need to improve disabled parking provision by doing three things. The first is to prevent the abuse of disabled parking bays; the second is to reform the blue badge system; the third is to improve the process for local authorities. I have attempted to make a small contribution by delivering on the first of the three, but it is for the Scottish Government and Westminster to deal with the others.”⁷⁴

189. The Committee, on the basis of the above report, recommends to the Parliament that the general principles of the Bill be approved.

Annexe a: subordinate legislation committee report

Subordinate Legislation Committee

Disabled Persons’ Parking Places (Scotland) Bill

The Committee reports to the lead committee as follows—

Introduction

1. At its meeting on 2 September 2008, the Subordinate Legislation Committee considered the delegated powers provisions in the Disabled Persons’ Parking Places (Scotland) Bill at Stage 1. The Committee submits this report to the Local Government and Communities Committee as the lead committee for the Bill, under Rule 9.6.2 of Standing Orders.

2.The Member-in-charge (Jackie Baillie MSP) provided the Parliament with a memorandum on the delegated powers provisions in the Bill⁷⁵.

Delegated Powers Provisions

3. The Committee considered each of the delegated powers provisions in the Bill. The Committee approves, without further comment, sections 11(3) and 12(3).

Section 5(6) – Disabled street parking orders: form and manner of requests by qualifying persons

4. Section 5(6)(b) confers a delegated power on local authorities, by default, where regulations are not in force, to enable local authorities (individually) to specify the form and manner of requests. Given that local authorities shall have the details of the information they require for this purpose, and that it may be possible that different Councils may require different information or want different methods for making requests, the Committee considers that it appears to be a sensible proposition that where regulations are not in force, this power should be delegated to Councils to specify the requirements.

5. The Committee considers that the delegated powers in section 5(6) are acceptable in principle, and agrees that these should be subject to negative procedure.

6. The Committee also considered the substance of the power in section 5(6)(b), so far as local authorities have a discretion (and not a duty) to specify the form and manner of applications, if regulations are not in force. The Committee notes that a local authority may fail to specify the form and manner of applications, and that such specification is not required in the Bill. It also notes that the method of local authority specification/publication, and to whom, is not prescribed.

7. The Committee also notes that under section 5(2), where a Council receives a request, it has duties (a) to decide if the person is “qualifying” (with a disabled persons badge and a suitably registered vehicle); and (b) whether it can identify a suitable street parking place in its area from which there is convenient access to the person’s address. As regards the workability of the power which local authorities have in section 5(6)(b), the Committee is not clear how Councils will be able to implement their obligations to consider these matters, if there is no requirement on Councils (in default of regulations) to prescribe the required form (and through the form, contents) of application with information provided by the applicant. The applicant would need to confirm whether they hold a relevant badge, whether the vehicle requirements are met, and whether there is a convenient street parking place to the relevant address. It appears to the Committee that Councils will require information in practice from the applicants, to be able to meet their duties under section 5(2). This issue does not arise however, if Councils decide to specify the appropriate form and manner of applications.

8. While the Committee is content that the provision in section 5(6)(b) should be expressed as a power to make subordinate legislation, it refers the issues set out above to the lead committee, to explore with the member in charge whether more is required to ensure the proper operation of section 5 (in the absence of any requirement on local authorities to specify the required form and manner of application).

9. The Committee draws this instrument to the attention of the lead committee and Parliament in respect that the power conferred on local authorities in section 5(6)(b) does not provide how the form or manner of a request by a potential applicant under section 5 shall be specified to persons, or published, or to whom the specification should be made.

10. The Committee also draws this instrument to the attention of the lead committee and Parliament in respect that section 5(6) does not provide for the position if regulations are not brought into force, and a local authority does not specify the form and manner of requests for applications. In this event, the Bill does not provide for how local authorities will obtain sufficient information in relation to a request, to enable them to comply with the duties they have in terms of section 5(2).