Tackling the Abuse of Off-Street Parking for People With Disabilities in Scotland

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CHAPTER TWO: SCOTTISH POLICY AND LEGISLATIVE CONTEXT

2.1 Introduction

This chapter provides the context of the study, describing related policy developments and the legal situation in Scotland relating to the provision of reserved parking for disabled people. Planning guidance and policy developments for the UK in general is included in Annex One.

2.2 Blue Badge Scheme

The Blue Badge Scheme provides a national arrangement in the UK, and a partnership arrangement in most European countries, of parking concessions for disabled people who travel either as drivers or passengers. The aim of the Scheme is to allow badge holders to park close to their destination, but the concessions may not actually apply to car parks and off-street parking. Nevertheless, because of the common view that off-street reserved spaces should be for the sole use of Blue Badge holders, it is infeasible and inappropriate to consider the issue of abuse of reserved parking facilities off-street without some consideration of the Blue Badge Scheme.

Although the Scheme does not apply in off-street car parks, some sites may provide spaces for disabled people in which the enforcement of the availability of parking facilities is a requirement under disability discrimination legislation (see Section 2.3). All providers of parking facilities have a duty to both provide reserved parking spaces for disabled people, and monitor their use/misuse in order to ensure that they are available for disabled people. The "some sites" refers to the fact that not all off-street spaces are related to the Blue Badge Scheme, which was introduced for on-street parking. In many cases the problem arises from a non-disabled person using a reserved parking bay with a complete disregard for the fact that he or she is not entitled to do so, but there are other ways in which the system can be abused, such as:

  • People using a Blue Badge or a permit that has expired
  • Illegal sharing of permits and Blue Badges among friends and relatives
  • Stealing of a Blue Badge or permit from a Badge holder's car, or the illegal purchasing of such documentation that is either no longer needed, or has been stolen

If service providers do not monitor whether the service is accessible to disabled customers by ensuring the spaces are not used by non-disabled customers, then it is possible for a disabled person to make a claim against the service provider under Part III of the Discrimination Disability Act ( DDA) 2005, as described in Section 2.3 below.

Individuals who are eligible for the Blue Badge Scheme in Scotland include people who:

  • Receive the higher rate of the mobility component of the disability Living Allowance
  • Receive a War Pensioners' Mobility Supplement
  • Use a motor vehicle supplied for disabled people by the Scottish Executive or the Department of Social Security
  • Have a severe disability in both upper limbs, regularly drive a motor vehicle but cannot turn the steering wheel of a motor vehicle by hand
  • Have a permanent and substantial disability which means they are unable to walk or have very considerable difficulty in walking
  • Are registered blind
  • Are unable to walk or have considerable difficulty in walking because of a temporary but substantial disability which is likely to last for a period of at least 12 months but less than 3 years
  • Children under 2 whose medical needs require that he or she is accompanied by bulky medical equipment

A Power to Inspect Blue Badges was introduced in Scotland on 1 January 2004. This is designed to protect the rights of legitimate badge holders by stopping people who are forging, stealing or tampering with badges that are not their own. It is an offence for badge holders not to show their badge when requested. A Policeman, a traffic warden or Local Authority car parking attendant has power to inspect badges (Scottish Executive 2007). Whilst legislation relating to the Blue Badge Scheme refers primarily to on-street parking, the promotion of a Traffic Regulation Order ( TRO) to protect an off-street parking bay can restrict its use to Blue Badge holders only (see section 2.5).

2.3 Disability Discrimination Act and the Disability Equality Duty

The importance of safeguarding the rights of disabled people to be able to benefit from the Blue Badge Scheme has been underpinned by the Disability Discrimination Act ( DDA) (2005), and more especially by the Disability Equality Duty ( DED), which came into force on the 4th of December 2006. Whilst the DDA promotes equality of opportunity, the removal of barriers to accessing goods and services, and the obligation to take reasonable steps towards making facilities accessible, the DED goes a step further, in as much as it imposes a duty on public bodies to actively promote equality of opportunity for disabled people. Organisations will be required to produce, in consultation with disabled people, a Disability Equality Scheme ( DES) demonstrating how they intend to fulfil their disability equality duty. Essentially the DES is a framework to assist authorities in planning, delivering, evaluating and reporting on their activities to ensure compliance with the general duty.

Plans and procedures for ensuring that parking spaces designated for disabled people are available for their use are very much part of the Disability Equality Duties of public authorities. Even the Scottish Ministers, including those in key Cabinet positions, will be subject to these Specific Duties. Monitoring of performance against this detailed strategy will be carried out through current audit and inspection bodies. DRC Scotland has produced a code of practice to support this legislation, entitled "The Duty to Promote Disability Equality: Statutory Code of Practice for Scotland" .

Part III of the Disability Discrimination Act ( DDA) 2005 imposes a legal requirement for service providers to ensure that disabled people do not find it "unreasonably difficult or impossible" to enjoy a given service in the same way as non-disabled people. The core principles of the Act are that:

  • It is unlawful to discriminate against a disabled person by refusing to provide a service which is provided to other members of the public, or by providing a service which is of a lower standard or on less good terms;
  • Changes should be made to any practice, policy or procedure which makes it impossible or unreasonably difficult for a disabled person to make use of the service; and
  • Any auxiliary aid or service which would enable a disabled person to use the service should be provided.

Since October 2004, when the exemption formerly held by the providers of transport facilities from the mandatory requirements of Part III of the Act was removed, more attention has been paid to the provision of car parking for service users. It is suggested in guidelines to the DDA, published by the Disability Rights Commission ( DRC), that it is not unreasonable for service providers providing a car park for customers to ensure that this facility can also be used by disabled customers, by monitoring reserved bays to ensure their availability. This means that reasonable steps need to be taken by the service provider to prevent the abuse of reserved parking spaces by non-disabled drivers. In principle, failure to safeguard disabled customers' right to have access to parking spaces that they can use might result in a financial penalty for the service provider and/or financial compensation for any disabled person who is discriminated against in this way.

The Act requires service providers employing more than five employees to take reasonable steps to ensure that disabled people do not find it impossible, or unreasonably difficult, to enjoy the service on the same basis as non-disabled people. This will have implications for car park operators, who may have to demonstrate that as well as marking out disabled person's parking spaces, they have taken reasonable steps to ensure that they are available to disabled people. This implies that they should both provide a specified number of parking bays suitable for disabled people, and actively monitor them to ensure that there is no incorrect use.

2.4 Disabled Person's Parking Bays (Scotland) Bill

In November 2006, a proposal was lodged in the Scottish Parliament to introduce a Bill that would facilitate the enforcement of parking bays reserved for disabled people (this was the Disabled Person's Parking Bays (Scotland) Bill, proposed by Jackie Baillie MSP). Whilst it is currently not clear whether this Bill will become law, its aim would be to make all reserved bays enforceable, in place of the current situation, where some reserved bays are enforceable, and some (approximately 85%) are not. One of the stated justifications for the Bill is the perception that Local Authorities are currently required to endure a long, complex, and therefore costly, process, in order to designate a reserved parking bay for disabled people that is legally enforceable. This Bill is relevant to the current research in as much as it refers to reserved parking facilities both on-street and off-street. Its aim is to facilitate the process by which an enforceable parking bay can be established, so that, if the Bill were to become law in Scotland, it is likely that more parking providers will be encouraged to use legislative means for enforcing reserved parking facilities.

Furthermore, if the Bill succeeds in its objective to make all reserved parking bays legally enforceable, then this would clarify the status of such facilities for both disabled people who might wish to use them, and non-disabled people who might be liable to use them when they are not entitled to do so. Currently, the fact that some reserved bays are enforceable, whilst others are merely advisory, is a source of uncertainty, and makes all designated bays liable to be abused by non-disabled people. This situation is made worse by the fact that it is Local Authorities' responsibility to designate which reserved parking bays are advisory and which are enforceable, which means that the number and proportion of legally-enforceable bays vary geographically. The ultimate objective of the Bill is to increase the availability of conveniently sited reserved parking bays for disabled people, by making it possible for Authorities to deter abuse by imposing fines on people found to be abusing these facilities. This should help to remove barriers to participation for disabled people, and encourage them to take a more active role in society.

2.5 Traffic Regulation Orders

One legislative tool that off-street parking providers can use to enforce the restriction of the use of a parking bay reserved for disabled people is a Traffic Regulation Order ( TRO). In Scotland, the procedures for local traffic authorities applying for a TRO are contained in the Local Authorities' Traffic Regulation Orders (Procedure) (Scotland) Regulations 1999. The Road Traffic Offenders Act 1988 enables the authorities to impose a fine of up to £1,000 for use of such a space by a non-disabled person. A TRO details the nature and extent of parking controls within a Council's area.

The contravention of the controls specified within a TRO can give rise to the issuing of a Penalty Charge Notice ( PCN) in Local Authority areas where decriminalised parking enforcement has been introduced (see section 2.6). When receiving a PCN in Scotland, it is possible for the recipient of the Notice to appeal to the Scottish Parking Appeals Service ( SPAS), an independent adjudication service. In non-decriminalised Local Authority areas, enforcement would be by the police and traffic wardens.

Local authorities have powers under the Road Traffic Regulation Act 1984 to promote TROs to secure the expedious, convenient and safe movement of traffic, including the provision and any subsequent restriction for holders of a disabled badge. A Local Authority may also promote a TRO to enforce off-street parking, with subsequent provision for Blue Badge holders.

The relevant statutory process requires that there should be a period of public consultation, after which the TRO must be advertised in the local press, to provide the opportunity for objections to be raised by members of the public. If any objections are raised, then the Local Authority must consider these, and, if necessary, amend the TRO, after which further consultation might be required. This process both incurs costs, in the form of legal fees and advertising fees, and takes time to complete - it has been suggested that the average time taken from the design of a TRO to its implementation is 9 to 12 months. The Disabled Person's Parking Bays (Scotland) Bill, (if it becomes law) aims to remove such procedural deterrents to Local Authorities introducing enforceable reserved bays.

2.6 The Decriminalisation of Parking

The two Acts of Parliament that are of relevance in this context are The Road Traffic Regulation Act 1984, and the Road Traffic Act 1991. It was the 1984 Act that first enabled Local Authorities to take part in the enforcement of parking offences, although enforcement actions were still dealt with through the criminal court system and many parking offences remained the responsibility of the Police and traffic wardens. The Road Traffic Act 1991 decriminalised parking offences that were already enforced by Local Authorities. The major change was that enforcement could then be effected by civil means; the monitoring and enforcement of restricted parking, which had previously been the responsibility of the Police and Traffic wardens, were also transferred to councils. The 1991 Act stipulates that, in order to use these legal powers of enforcement, a council must first obtain a Special Parking Area Order. A detailed proposal of how a decriminalised scheme would be viable is also required.

The Road Traffic Act 1991 introduced provisions enabling the decriminalisation of most non-endorsable parking offences in London and permitted similar arrangements to be introduced elsewhere throughout the UK. The relevant provisions of the 1991 Act were commenced in Scotland in June 1997. The City of Edinburgh Council were the first to introduce decriminalised parking enforcement ( DPE) within the city on 5 October 1998. Since then Glasgow City Council, Perth & Kinross Council, Aberdeen City Council, Dundee City Council and South Lanarkshire Council have also introduced DPE.

Under the scheme, participating local authorities administer their own parking penalty schemes and retain the penalties collected to finance its parking enforcement procedures. Under existing arrangements, income generated from fines arising from parking infringements accrues to the Exchequer as these are criminal offences. A breach of parking rules within an area where DPE is in force will require payment to the local authority of a penalty charge. Motorists can appeal against the issue of Penalty Charge Notices to the Scottish Parking Appeals Service ( SPAS) whose decision is final.

The enforcement of parking within a DPE area is no longer the responsibility of the Police or Traffic Wardens but is implemented by employees of the local authority, either directly or under contract. Revenue generated from parking penalties under DPE will accrue to the local authority and will be used to fund the operation of the scheme. Any surplus is first used to improve off-street parking facilities and second for general traffic management purposes within the area of the authority. Therefore, the revenue is effectively ring-fenced for traffic management measures and cannot be used by an authority for other purposes.

2.7 Scottish Planning Guidance

The precise design and location of reserved parking spaces for disabled people, within a parking facility provided for the general public, is the subject of guidance published in Part S of the Technical Standards for compliance with the Building Standards (Scotland) Regulations 1990 (Scottish Executive 1990). As a general rule, however, the guideline is that parking for disabled people should be located as close to building entrances as feasible, and with level access between vehicle and building. Similar guidance is provided by the UK Department for Transport in their leaflet "Parking for the Disabled- Traffic Advisory leaflet" and is also contained within the DfT publication "Inclusive Mobility" (Oxley, 2002)

Scottish Planning Policies provide statements of Scottish Executive policy on nationally important land use and other planning matters. Scottish Planning Policy- SPP 17 -Planning for Transport states that local authorities have powers, under The Road Traffic Regulation Act 1984, to designate, by an order under The Local Authorities' Traffic Orders (Procedure) (Scotland) Regulations 1999, spaces for parking facilities reserved for disabled people on private land with the agreement of the land owner. Such designation allows such parking facilities to be enforced by Police, traffic wardens or, in areas with decriminalised parking, car park attendants. It also states that Local Authorities should consider designation, especially where there is a history of abuse of parking facilities reserved for disabled people in retail, leisure and recreation developments in the area.

Part S of the Technical Standards for compliance with the Building Standards (Scotland) Regulations 1990 states that parking spaces for use by disabled people should be provided at a ratio of at least one car parking space per 20, or part thereof, and that these spaces should be located not more than 45 metres from the principal entrance to the facility, and should be clearly marked as being for the use of disabled people. In terms of dimensions, each parking space must be at least 4.8 x 2.4 metres, with a clear space (which may be shared between two contiguous spaces) at least one metre wide along one side.

2.7.1 Car Parking Health Facilities Note

The Car Parking Health Facilities Note 21 ( HFN 21) was published in 1996 by NHS Estates. HFN 21 reviews the issues surrounding the optimum provision of car parking facilities for healthcare premises in the UK, offers a framework for appraising the options, and enables healthcare managers to effectively brief park designers. It categorises potential users of parking space by need; some staff must have easy access while others who require parking by virtue of residence have less defined needs. Allowance must be made for spread of use throughout the day and for any key features particularly affecting the user level of the building. Most staff and out-patients who require parking space will do so during normal working hours; most patients' visitors will arrive in the evenings or at weekends.

On parking provision for disabled people, HFN 21 recommends that a number of spaces should be provided for their exclusive use, both staff and patients, and should be clearly marked and easy to find. It also states that, whenever possible, spaces for disabled people should be situated near to building entrances, and if necessary, in segregated parking areas, and placed so that disabled people do not have to cross a road. NHS estate managers are advised to follow the design guidelines of BS 5810:1979, Clause 9.2; HBN 40 'Common activity spaces, Volume 1 - Public Areas', Chapter 6 and Appendix 1 'Designing for Disabled People' (1995); BS 5810, the Code of Practice for Access for the Disabled to Buildings; the Disability Scotland Access Guide.

However no suggestions are made on how to tackle and prevent the abuse of spaces for disabled people, or how these should be managed and monitored. HFN 21 does highlight the problem of people using NHS parking facilities who are not using the health facilities, especially where parking is free, and suggests introducing charges. The most effective option highlighted is pay and display, which is identified as being more cost effective for health facilities than barrier systems and most effective in smaller car parks, with the advantage of not causing congestion at entrance/exit points, but is prone to abuse, given that the enforcement of penalties may be inconvenient for a health authority. Other options suggested include: a) payment on entry or exit (which gives the parking provider no control of length of stay), b) the collection of money for a ticket on entry or exit, and c) the issuing of a ticket on entry with payment required when leaving the car park.

The guidance was updated in 1996 with draft guidelines on how hospitals should best comply with their duties under the Disability Discrimination Act, with particular reference to the Scottish context. This guidance, which provides details of both car parking and drop-off facilities, informed the design of the new Edinburgh Royal Infirmary.