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Cyclist challenges council over barriers on popular cycle route that "discriminate against disabled people"

"We are finding time and again that disabled people are denied access to spaces that other people can access"...

A cyclist in Newcastle has sent a legal letter to the city's council to challenge the lawfulness of barriers on a National Cycle Route which prevent him from accessing the path on his recumbent.

Alastair Fulcher has Parkinson's Disease which affects his balance, core strength and ability to walk, but is able to continue to enjoy cycling thanks to his tricycle.

However, the 61-year-old from Wallsend, is unable to ride the National Cycle Route 72 past Pottery Bank due to the barriers installed to prevent motor vehicles accessing the route.

"The fact is, as I have discovered, cycle paths are riddled with barriers such as these," he said. "It is just that this one is so important, being on an
internationally recognised cycle path. The location of this barrier completely denies access to me to all of the network of cycle tracks west of this point. On a bicycle, you can ride all the way to Carlisle on mostly quiet cycle paths. For me, that's not possible on my recumbent.

Cyclist challenges council over barriers on popular cycle route that "discriminate against disabled people" (Alastair Fulcher)

"I do not believe the motorcycle nuisance at Pottery Bank is so bad that a disabled cyclist should have to pay the price for tackling the issue."

Represented by human rights solicitor Ryan Bradshaw of Leigh Day, Alastair says the barriers put Newcastle City Council in breach of the European Convention on Human Rights (ECHR) and Human Rights Act 1998, the Equality Act 2010 and planning guidance of local authorities. He has sent a legal letter to the council to challenge the lawfulness of the barriers.

"The last time I rode through the NCR 72 barrier at Pottery Bank on a bicycle was 10 July 2022. In common with a great many able-bodied people, it never occurred to me how much of a problem this barrier causes," he explained.

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"The progression of my Parkinson's disease had made, in my opinion, continued riding of a solo bicycle unwise; it was eventually going to end in casualty with a broken collarbone or worse. This is why I purchased the recumbent HD26 during August 2022. This has allowed me to continue to be active and it greatly mitigates my Parkinson's symptoms."

The disabled people's cycling organisation Wheels for Wellbeing has also supported Alastair's case, saying "we are finding time and again that disabled people are denied access to spaces that other people can access".

A spokesperson said: "So many physical barriers have been put in which are far more effective at preventing legitimate users from using paths and open spaces than they are at preventing the problems that are the pretext for the barriers.

Cyclist challenges council over barriers on popular cycle route that "discriminate against disabled" (Alastair Fulcher)

"Barriers on cycle routes are preventing disabled people from making local journeys using all sorts of mobility aids, and restricting access to exercise, recreation and natural spaces, which are all so important for physical and mental health.

"If there really are problems with abuse of paths, it is a policing matter. Authorities need to make it easier to report problems to the police, not discriminate against disabled people with inaccessible barriers."

Cycling planning guidance from local authorities states routes must be accessible to recumbents, trikes, handcycles and other cycles used by disabled cyclists.

Furthermore, access control measures such as chicane barriers and dismount signs "should not be used where they reduce usability and may exclude people riding non-standard cycles and cargo bikes".

> Campaigners call for clearer signage to reduce "risk of confrontation" with pedestrians, after council insists disabled cyclists won’t be fined under controversial town centre cycling ban

"Schemes should not be designed in a way that access controls, obstructions or barriers are even necessary. The built environment should be accessible to all, including young people, older people and disabled people… design should begin with the principle that all potential cyclists and their machines should be catered for in all cycle infrastructure design," it continues.

Alastair and his solicitor have also pointed to the European Convention on Human Rights Article 2 Protocol 4 which enforces the right to freedom of movement, while Article 14 prevents discrimination in securing the rights and freedoms laid out in the Convention.

They also note that the 2010 Equality Act states that unlawful discrimination because of disability takes place if the disabled person's treatment cannot be shown to be proportionate means of achieving a legitimate aim. Alastair refutes that any Northumbria Police reported concerns about motorcycle-related anti-social behaviour justifies the installation of the barriers.

He says that the council has failed in its duty to make reasonable adjustments to avoid disadvantaging disabled people and indirect discrimination has taken place.

Having first contacted the council about the barrier in November 2022, another was installed in May of this year.

A spokesperson from Newcastle City Council has said: "We are aware of a complaint from a resident with regards to the cycle path on Pottery Bank. This is currently being reviewed, therefore we are unable to comment further at this time."

Alastair's solicitor Mr Bradshaw said: "It is always disappointing to come across infrastructure that is inaccessible to disabled people. The fact that these barriers have been installed on a National Cycle Route compounds the issue. All cycling routes should be inclusive and accessible by default, disabled people should not have to threaten court action in order to enjoy the types of leisure activities the rest of us can take for granted."

Dan joined road.cc in 2020, and spent most of his first year (hopefully) keeping you entertained on the live blog. At the start of 2022 he took on the role of news editor. Before joining road.cc, Dan wrote about various sports, including football and boxing for the Daily Express, and covered the weird and wonderful world of non-league football for The Non-League Paper. Part of the generation inspired by the 2012 Olympics, Dan has been 'enjoying' life on two wheels ever since and spends his weekends making bonk-induced trips to the petrol stations of the south of England.

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22 comments

Avatar
CF@Wds | 2 months ago
2 likes

Barriers look very hard to see in the dark.
I would say first stage is to request evidence that the scheme was compliant in assessing the impact on accessibility and also health and safety legislation. What's the status of the path and why, for instance, are the reflectors not present or correctly colour coded?
As to nuisance from motorised vehicles, is their a traffic order to prevent this usage? If not the council could be over using it's powers to erect random structures on it's property where public access is legally permitted.
I would argue that these type of barriers, by excluding some types of bikes, are designed to exclude this type of road user with preference to pedestrians. But can mobility scooters get through?
What number of complaints to council or police over misuse?
What guidance did the council follow to choose these barriers?
Just seems like the council compliance team are in charge, expanding their turf.
This will happening up and down the country. It's time to raise it with a responsible political party i.e. not the current bunch of misfits and incompetents.

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BigDoodyBoy | 2 months ago
0 likes

The law of unintended consequences. I can't help but think this is a case of massive volte face due to the shitty stick life has just thrown at him.

I wish him well in his quest but hope he doesn't end up inconveniencing another single individual as a result of any change the council puts in place.

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chrisonatrike replied to BigDoodyBoy | 2 months ago
5 likes

Eh?  Is this some kind of parody I'm not getting?  Are you referring to the complainant in this article (one "Alastair Fulcher [who] has Parkinson's Disease which affects his balance, core strength and ability to walk, but is able to continue to enjoy cycling thanks to his tricycle.")?

As noted below (and in many previous debates) many of these barriers demonstrably fail to stop those they're presumably targetting (yoof on various species of motorbikes / quad bikes IIRC *).  They clearly do stop all kinds of people for no good reason and through no fault of their own.  More than that - they inconvenience lots of people who e.g. don't even need to use some kind of wheelchair, adapted cycle, mobility vehicle etc.

I'd say in general making spaces more accessible actually benefits everyone (e.g. ramps are normally safer than stairs, dropped kerbs are also easier and safer all round).  Albeit they may cost more.  Can you provide any counter-examples?

Or are such public spaces just "nice to haves" that a certain proportion of the population just don't get to access, and they can suck it up because "we all have to compromise"?

* Actually that is almost always going to be an enforcement issue, a "regulating sales" issue or even more broadly a "giving them something better to do" issue.  All of which are much harder problems and expensive, I agree.

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Rendel Harris replied to BigDoodyBoy | 2 months ago
5 likes

BigDoodyBoy wrote:

The law of unintended consequences. I can't help but think this is a case of massive volte face due to the shitty stick life has just thrown at him. I wish him well in his quest but hope he doesn't end up inconveniencing another single individual as a result of any change the council puts in place.

OK...a volte face means a 180 degree turnaround in opinions and beliefs, so unless you have evidence that before Mr Fulcher became ill he was fervently against disabled access I'm not sure why would you say that? In terms of his "quest" inconveniencing anyone else, I think most decent folks would accept a little inconvenience in return for improved disabled access; none of us know when we might need it...

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mattw | 2 months ago
2 likes

Yay. Moar ! Moar ! Everywhere.

What happens next is that the Council's lawyers send him a snotty, threatening letter saying they refuse to believe he is disabled, and must demonstrate that he cannot lift his recumbant trike over the complained-about barrier.

Then he replies saying "you're having a larf!".

Then a Court Date is set.

Then the Council cave and offer him about £4k compensation before it gets to Court, which also technically means he can't ask for an Injuction to make them remove to - but they usually do.

One alternative to the Injuction which needs to be explored is for the complainant to insist on a Consent Order, which here would be a private agreement certified by a judge, which can subsequently be enforced by an aggreived party appealing to the Court.

They are notably cheap in Court Fees, and usually used for making financial agreements legally enforcible in divorce cases.

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BIRMINGHAMisaDUMP | 2 months ago
7 likes

These barriers also block cargo bikes.  

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Sriracha | 2 months ago
10 likes

I wish they showed as much enthusiasm installing barriers to allow pedestrian access to the pavement whilst excluding vehicles. And in fact, that would be a far easier thing to design!

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Kfitzat | 2 months ago
3 likes

Same thing in the Ancholme Valley Way. Obviously, the same local authority that banned cycling in Brigg and Scunthorpe town centre...

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1tal | 2 months ago
9 likes

I live just down the road in Durham from Aliastair and also ride a Recumbent trike, the cycle routes in Co-Durham are the same. I built up a gravel trike but it's no use can't get through the barriers.

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hawkinspeter | 2 months ago
11 likes

I hope he wins. Councils just throw in any old kind of barrier to "prevent" motor vehicles without considering the wider picture of access. I'd much rather they did away with those barriers and put in a couple of bollards to prevent car access. I bet there's no evidence that those barriers actually prevent motorbikes from accessing it anyhow.

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Sriracha replied to hawkinspeter | 2 months ago
11 likes

I don't see how a barrier can be designed to allow the ever increasing range of cycles and e-cycles whilst obstructing the fully motorised versions. Cars, yes.

So can one of these interested organisations not mount a challenge to the legal basis on which these obstructions are installed, demonstrating that if they do succeed in their ostensible purpose obstructing motorbikes then that itself proves they obstruct some cyclists, including a disproportionate number of disabled cyclists, hence they are illegal?

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OnYerBike replied to Sriracha | 2 months ago
3 likes

As noted in the article, the Equality Act does allow discrimination if it is deemed to be a "proportionate means of achieving a legitimate aim". 

Therefore, whilst any kind of effective barrier is necessarily discriminatory, it is assessed on a case-by-case basis whether or not it is proportionate. 

Pretty much all the advice is that such barriers are very rarely lawful, given the significant impact on disabled people, their inefficacy in achieving their stated aim, and potential for other options to be considered (e.g. more policing). But even so, it does mean that barriers aren't necessarily unlawful and so a blanket challenge would probably fail.  

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hawkinspeter replied to OnYerBike | 2 months ago
2 likes

OnYerBike wrote:

As noted in the article, the Equality Act does allow discrimination if it is deemed to be a "proportionate means of achieving a legitimate aim". 

Therefore, whilst any kind of effective barrier is necessarily discriminatory, it is assessed on a case-by-case basis whether or not it is proportionate. 

Pretty much all the advice is that such barriers are very rarely lawful, given the significant impact on disabled people, their inefficacy in achieving their stated aim, and potential for other options to be considered (e.g. more policing). But even so, it does mean that barriers aren't necessarily unlawful and so a blanket challenge would probably fail.  

However, wouldn't the council have to produce some figures on how effective their barriers are? I suspect that they have exactly zero figures on illegal motorbike access to paths and so how could they defend that they are proportionate if they are known to block disabled cyclists and not known to block motorcyclists?

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mattw replied to hawkinspeter | 2 months ago
2 likes

That's already in the process in the guidance - there must be a current serious problem.

But that doesn't happen, and complaints via Council's own complaints procedures take 1-2 years and cannot guarantee that the barrier is removed.

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mattw replied to Sriracha | 2 months ago
2 likes

I'm not sure how that would be done - short of eprhaps a Judicial Review when the thing is first installed, which has to be done within I think 3 months.

Equality Act limits legal action to the person who has been discrimated against (so can't be done on a general principle unless there is something I don't know about or on behalf of someone else unless a kind altruidt indemnifies the downside via a provate contract), and legal aid was destroyed by David Cameron - so it becomes a personal risk for people from one of the most disavnataged groups in the country.

And the compensation is Up to 10k, so not enough margin for No Win No Fee.

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hawkinspeter replied to mattw | 2 months ago
3 likes

mattw wrote:

I'm not sure how that would be done - short of eprhaps a Judicial Review when the thing is first installed, which has to be done within I think 3 months.

Equality Act limits legal action to the person who has been discrimated against (so can't be done on a general principle unless there is something I don't know about or on behalf of someone else unless a kind altruidt indemnifies the downside via a provate contract), and legal aid was destroyed by David Cameron - so it becomes a personal risk for people from one of the most disavnataged groups in the country.

And the compensation is Up to 10k, so not enough margin for No Win No Fee.

It's almost as though the Tories only want justice to be available to the wealthy

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brooksby replied to hawkinspeter | 2 months ago
5 likes

hawkinspeter wrote:

mattw wrote:

I'm not sure how that would be done - short of eprhaps a Judicial Review when the thing is first installed, which has to be done within I think 3 months.

Equality Act limits legal action to the person who has been discrimated against (so can't be done on a general principle unless there is something I don't know about or on behalf of someone else unless a kind altruidt indemnifies the downside via a provate contract), and legal aid was destroyed by David Cameron - so it becomes a personal risk for people from one of the most disavnataged groups in the country.

And the compensation is Up to 10k, so not enough margin for No Win No Fee.

It's almost as though the Tories only want justice anything good to be available to the wealthy

Fixed it.

Avatar
mattw replied to hawkinspeter | 2 months ago
4 likes

hawkinspeter wrote:

mattw wrote:

I'm not sure how that would be done - short of eprhaps a Judicial Review when the thing is first installed, which has to be done within I think 3 months.

Equality Act limits legal action to the person who has been discrimated against (so can't be done on a general principle unless there is something I don't know about or on behalf of someone else unless a kind altruidt indemnifies the downside via a provate contract), and legal aid was destroyed by David Cameron - so it becomes a personal risk for people from one of the most disavnataged groups in the country.

And the compensation is Up to 10k, so not enough margin for No Win No Fee.

It's almost as though the Tories only want justice to be available to the wealthy

It's not just the Tories - making it difficult goes back at least to the Disability Discrimination Act in 1995, and before that.

EA2010 was passed under the Gordon Brown Government, which afaics excluded legal action by other than individuals.

Though TBF it was the Tory Governments since 2010 that have salami-sliced the public realm and central funding of local government by about half.

The issue is more around NIMBY type politics, and 30-40 years of being told that barriers fix things. In some places the police still support making access difficult, rather than dealing with antisocial behaviour and illegal motor bikes via police enforcement.

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chrisonatrike replied to mattw | 2 months ago
0 likes

mattw wrote:

The issue is more around NIMBY type politics, and 30-40 years of being told that barriers fix things. In some places the police still support making access difficult, rather than dealing with antisocial behaviour and illegal motor bikes via police enforcement.

Yeah - it's always seen as cheaper (and it is ... for a given value of "cheap") to build stuff (one-off) rather than signing up to ongoing costs (possibly open-ended...).  Especially when this involves employing people.

Over and above this I think there is something in the UK's culture, a kind of odd version of "laissez-faire".  So after presumably *much* complaining places put up barriers to public spaces.  Once these became a "thing" they were then apparently fairly blindly copied all over.  They might dissuade some youth on motor vehicles, but they definitely impede everyone else and may exclude some entirely.  Further complaints - until very recently - go nowhere.  "We fixed it.  Won't you think of the children?"

Or like pavement parking - illegal, but actually technically not (it's only driving there which is).  Great for lawyers!  Then in practice we mostly do nothing, because either "see - we banned it!" or (e.g. the police) "it's the council's job".

Perhaps "nimby" (or "not my job, mate") is the best description?  I guess on the plus side this tendency might reduce the likelihood of us going all China / Russia etc...

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mattw replied to chrisonatrike | 2 months ago
1 like

I have also seen (can't remember where) a suggestion that Rights of Way staff, their superiors, and Councillors are reluctant to admit the enormous Rights of Way issues that face them.

It needs the full review of all paths, bridleways etc that Sustrans did under their Paths for Everyone project in 2018, where they identified 16,000 barriers needing removal ro redesign on their network.

Certain Councils are doing things more systematically - one slighty unexpected one being I think Kings Lynn. But most public paths belong to the LHA not the District.

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Sriracha | 2 months ago
19 likes

Plenty of hooligans on illegal machines churning up a local nature reserve. There are of course all manner of barriers guarding the paths, but they are just part of the fun for your typical offroad e-motorbike riders, but a right nuisance for cyclists.

The hooligans make no secret of their presence, their schedule is regular and predictable, and generally audible for miles around. It makes it easier for the police to know when not to show their face.

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mattw replied to Sriracha | 2 months ago
1 like

Yes, in spades.

It is to do with policing investment an policing prioirities - which needs to be addressed via Local Councillors and PCCs, to get priorities adjusted more appropriately. 

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