Restrictions imposed on cyclists and runners on the Thames path

Roedd y cais yn llwyddiannus.

Dear Sirs/Madams,

This is a request under Section 1(1)(b) of the Freedom of Information Act 2000 (FOIA).

I refer to the article, "Thames path to remain closed to runners and cyclists" dated 14 April 2020, at https://www.lbhf.gov.uk/articles/news/20... (accessed 31 January 2021). The article discusses restrictions imposed by Hammersmith and Fulham Borough Council (the "Council") on cyclists and runners (the "Restrictions"). The Restrictions appear to still be in force at time of writing, in January 2021.

Please release any documents which are responsive to the following queries. FOIA section 12 provides, inter alia, that a public authority is not obliged to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit, presently £600. If, for the following questions, compliance would breach the £600 cap, please disclose whatever information is available up to that cap. Please note that in certain cases statutory obligations may supersede S12 FOIA and require the Council to disclose documents and/or information responsive to the following requests regardless of the cost (this depends on the powers under which Council has imposed the Regulations, see Q6, below).

Please disclose the following:

1. All internal discussion notes, emails, letters, reports, council meeting minutes or other documents relating to, or in any way connected with, the Restrictions.

2. All scientific evidence considered by the Council prior to implementation justifying the differing treatment imposed by the Restrictions on (a) walkers; (b) cyclists; and (c) runners.

3. The analysis conducted prior to implementing the Restrictions, pursuant to both (a) the Council's public sector equality duty; and (b) the Human Rights Act 1998.

4. The weekly cost for staff enforcing compliance with the Restrictions.

5. The total cost to date for staff enforcing compliance with the Restrictions.

6. The powers under which the Council has imposed the Restrictions. For example, the specific sub-section(s) and/or regulation(s) of, inter alia, the the Public Health (Control of Disease) Act 1984, the Health Protection (Coronavirus) Regulations 2020, etc.

7. The Council's reason(s) for imposing the Restrictions.

8. The date and time on which the Restrictions came into effect and the date and time on which they will end.

9. Sufficient detail on the place(s) to which the Restrictions apply to enable the boundaries of the place(s) to be determined - for example, maps and/or diagrams.

10. The appeals and representations process to seek the revocation of the Restrictions.

Yours faithfully,

Mr McLeod

H and F In Touch, Hammersmith and Fulham Borough Council

Our reference: 1877080
 
 
Dear Mr. McLeod 
 
Thank you for your request for information that was received on 1 February
2021.  Your request has been summarised as follows:
 
1. All internal discussion notes, emails, letters, reports, council
meeting minutes or other documents relating to, or in any way connected
with, the Restrictions.

2. All scientific evidence considered by the Council prior to
implementation justifying the differing treatment imposed by the
Restrictions on (a) walkers; (b) cyclists; and (c) runners.

3. The analysis conducted prior to implementing the Restrictions, pursuant
to both (a) the Council's public sector equality duty; and (b) the Human
Rights Act 1998.

4. The weekly cost for staff enforcing compliance with the Restrictions.

5. The total cost to date for staff enforcing compliance with the
Restrictions.

6. The powers under which the Council has imposed the Restrictions. For
example, the specific sub-section(s) and/or regulation(s) of, inter alia,
the the Public Health (Control of Disease) Act 1984, the Health Protection
(Coronavirus) Regulations 2020, etc.

7. The Council's reason(s) for imposing the Restrictions.

8. The date and time on which the Restrictions came into effect and the
date and time on which they will end.

9. Sufficient detail on the place(s) to which the Restrictions apply to
enable the boundaries of the place(s) to be determined - for example, maps
and/or diagrams.

10. The appeals and representations process to seek the revocation of the
Restrictions.
 
We are dealing with your request under the Freedom of Information Act
2000and we aim to send a response by 1 March 2021- this is 20 working days
from the date of receipt. 
 
The Freedom of Information Act 2000may restrict the release of some or all
of the information you have requested. We will carry out an assessment and
if any exemptionsapply to some or all of the information then we might not
provide that information to you. We will inform you if this is the case
and advise you of your rights to request an internal review.
 
We will also advise you if we cannot provide you with the information
requested for any other reason together with the reason(s) why and details
of how you may appeal (if appropriate).
 
 
If you are registered for self-service via the Council My Account portal,
you can track the progress of your request online:  [1]Track case progress
 
Yours sincerely
 
 
h&f InTouch team
 
[2]Covid-19 vaccine roll-out. Find out more at nhs.uk/covidvaccine

[3]Find out about the Covid-19 vaccine roll-out at nhs.uk/covidvaccine

[4]Covid symptoms? Get tested now. Test and trace - nhs.uk/coronavirus or
call 119

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Dear Sirs/Madams,

I write further to my FOI request dated 31 January 2021 (the "Request"). Defined terms used in the Request are adopted in this email.

I look forward to receiving a full reply to the Request no later than the end of 1 March 2021. I trust that it should not be necessary to remind the Council of the duty of candour imposed by the courts on public authorities. In circumstances in which powers exercised by the Council to impose the Restrictions appear to be exercised under statutory authority, this duty appears to be engaged. The duty is essentially one ‘owed by the defendant to give a full and accurate explanation of its decision-making process, identifying the relevant facts and the reasoning underlying the measure being challenged’.

If I have not received a substantive reply by the end of Friday, 5 March 2021, I will reluctantly conclude that I must escalate, inter alia, to the Information Commissioner's Office. This would however be wasteful of costs and should be avoided.

Yours faithfully,

Mr McLeod

H and F In Touch, Hammersmith and Fulham Borough Council

Information request
Our reference: 1877080
 
 
 
Dear Mr. McLeod
 
Thank you for your request for information received on 1 February 2021
concerning 1. All internal discussion notes, emails, letters, reports,
council meeting minutes or other documents relating to, or in any way
connected with, the Restrictions.

2. All scientific evidence considered by the Council prior to
implementation justifying the differing treatment imposed by the
Restrictions on (a) walkers; (b) cyclists; and (c) runners.

3. The analysis conducted prior to implementing the Restrictions, pursuant
to both (a) the Council's public sector equality duty; and (b) the Human
Rights Act 1998.

4. The weekly cost for staff enforcing compliance with the Restrictions.

5. The total cost to date for staff enforcing compliance with the
Restrictions.

6. The powers under which the Council has imposed the Restrictions. For
example, the specific sub-section(s) and/or regulation(s) of, inter alia,
the the Public Health (Control of Disease) Act 1984, the Health Protection
(Coronavirus) Regulations 2020, etc.

7. The Council's reason(s) for imposing the Restrictions.

8. The date and time on which the Restrictions came into effect and the
date and time on which they will end.

9. Sufficient detail on the place(s) to which the Restrictions apply to
enable the boundaries of the place(s) to be determined - for example, maps
and/or diagrams.

10. The appeals and representations process to seek the revocation of the
Restrictions..
 
This request is being handled under the Freedom of Information Act 2000.
 
From our preliminary assessment, we estimate that compliance with your
request would exceed the appropriate costs limit under section 12 of the
Freedom of information Act 2000. This is currently £450.00 or 18 hours.
 
Rather than refusing your request at this stage, I would like to explore
with you how we may help you to request relevant information which we
hold.
Questions 1, 4 & 5 would exceed the 18 hour limit. Question 1 is too broad
and to do an email search for this would exceed the limit due to the
volume of emails. We would need specific emails addresses and key word to
search, this still wouldn't guarantee that it would still be under the
limit.

We can answer the remaining questions under the limit if that is how you
like us to proceed with your request?
 
If you need assistance with this, please do not hesitate to contact me by
email at [email address].
 
Yours sincerely
 
 
Gary Clothier
Investigations and Information Officer
 
Please do not edit the subject when responding to this email. Our case
management system (iCasework) will not deliver your email to the intended
recipient if the subject is amended in any way.
[1]Covid-19 vaccine roll-out. Find out more at nhs.uk/covidvaccine

[2]Find out about the Covid-19 vaccine roll-out at nhs.uk/covidvaccine

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call 119

dangos adrannau a ddyfynnir

Dear Mr Clothier,

Thank you for your reply. Please do answer the remaining questions under the limit, with my thanks.

For the avoidance of doubt, I do not want to impose an unreasonable burden. I would hope that the mere fact of the request being filed should prompt an internal review of the merits of the Restrictions. I would therefore appreciate receiving a reply to the remaining questions within one calendar month, i.e. by Friday, 2 April 2021. If, by that time, the Restrictions happen to have been lifted, then from my perspective and that of those with whom I am working, it will be the end of the matter.

Yours sincerely,

Mr McLeod

Gadawodd Dominic Pinto anodiad ()

You may like to know that I've been pursuing this matter since May 2020 - so far with largely quite unsatisfactory answers.

1 April 16th 2020

Our reference: 1769903

Thank you for your request for information that was received on 16 April 2020. Your request has been summarised as follows:

The authority partially closed the Thames Path over the Easter weekend and now have extended that closure see https://www.lbhf.gov.uk/articles/news/20...

Please provide the statutory authority, notices and associated correspondence, committee or other consideration and discussion documents, papers, etc., that relate to these matters.

We are dealing with your request under the and we aim to send a response by 15 May 2020- this is 20 working days from the date of receipt.

The may restrict the release of some or all of the information you have requested. We will carry out an assessment and if any apply to some or all of the information then we might not provide that information to you. We will inform you if this is the case and advise you of your rights to request an internal review.

We will also advise you if we cannot provide you with the information requested for any other reason together with the reason(s) why and details of how you may appeal (if appropriate).

2 May 18th 2020

Our reference: 1769903

Freedom of Information Act 2000

We are dealing with your request and normally we would aim to send a response within 20 working days from the date of receipt.

However, the government have made a commitment to supporting councils to focus our efforts on the priority area of social care, providing vital support for vulnerable people and supporting their local economies.

And therefore, they have relaxed the statutory guidelines around the response times for Freedom of Information Requests.

We are extending the response times by 4 weeks, we will hope to release the information to you sooner, but we also wish to advise you of realistic timeframes which in regards to this request would be 15 June 2020.

We may restrict the release of some or all of the information you have requested. We will carry out an assessment and if any apply to some or all of the information then we might not provide that information to you. We will inform you if this is the case and advise you of your rights to request an internal review.

We will also advise you if we cannot provide you with the information requested for any other reason together with the reason(s) why and details of how you may appeal (if appropriate).

3 May 28th 2020

Your request
The authority partially closed the Thames Path over the Easter weekend and now have extended that closure see https://www.lbhf.gov.uk/articles/news/20...
remain-closed-runners-and-cyclists

Please provide the statutory authority, notices and associated correspondence, committee or other consideration and discussion documents, papers, etc., that relate to these matters..

Our response
This request is being handled under the Freedom of Information Act 2000.
I can confirm that the information requested is held by Hammersmith and Fulham. I have enclosed copies of the information that is being released to you <This comprised solely a photo of the restriction notice tied to a lamp post>

You are correct about the new rules imposed in Hammersmith and Fulham during the Easter Bank Holiday period. It was believed that these restrictions were necessary in order
to encourage our residents to abide by the social distancing rules introduced by the government. These restrictions have been extended for the period of the lockdown and will
be reviewed in light of any future change to the guidance provided by the government.

There is no partial closure of the Thames pathway, running and cyclist can still walk along this pathway. They are just not permitted to run or cycle during the times specified above.
There was initially some confusion in relation to when the restrictions apply, it was caused by an error on our part. The signs were ordered quickly and it wasn’t until we had received them that it was realised that they did not specify the times the restrictions would be in force as per our website. This error has now been rectified and all the old signs along the Thames Pathway have been replaced by new signs which now clearly state that the restrictions are between 10am and 6pm. A photo has been attached for your information.
I do not believe that the new restrictions that have been put in place are contradictory to the government guidelines. We are not restricting exercise at any other location. Our residents and visitors are free to exercise at any time at any other location in the Borough. And people are still able to walk along the Thames Pathway between 10am and 6pm.

Whilst the vast majority of user of the Thames pathway are courteous and respectful of the needs of other user, however a minority are not. We have had numerous complaints from
users that under the new government guidelines many users in particular cyclist and runners where failing to observe the 2m social distancing rule along with other aspects of the guidance in this area. The restrictions were therefore introduced in order to balance the needs of runners and cyclists with those of walkers wishing to use the Thames Pathway, whilst also encouraging social distancing.
We have received a number of compliments in relation to the actions we have taken to support social distancing, in particular from residents living close to the Thames Pathway.
As you can no doubt appreciate, the Covid 19 epidemic is a fast moving matter, the likes of which have not been seen in living memory. We are in unchartered territory, where quick responses are required to emerging threats.
As a council we took this seriously and decided that we had a duty of care to residents and users of our parks and open spaces. As such we implemented the restriction in order to minimise the breaches, thereby keeping our resident safe, supporting the NHS in their battle with the pandemic and helping to save lives.

The key piece of enabling legislation is the Civil Contingencies Act (CCA) 1984. This Act establishes Local Resilience Forums and establishes categories of Responders. It states that in case of emergencies Category 1 responders (the Council) should:
• maintain arrangements to warn, and provide information and advice to, the public if an emergency is likely to occur or has occurred;
• put in place arrangements to make information available to the public about civil protection matters.

This legislation is supplemented by Government Advice under CCA 1984. The government believes a well-informed public is better able to respond to an emergency and to minimise
the impact of the emergency on the community. By informing the public as best they can, all organisations will build their trust. Part of this is also avoiding alarming the public unnecessarily.
Finally section 111 of the Local Government Act 1972 provides that a local authority shall have power to do anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.

We have instructed our employees to engage with people in the parks and open spaces, that they believe not to be abiding by the government guidance on social distancing or rules.

4 I followed up on some 7 or 8 occasions in the following months:

e.g. on November 9th 2020

In that no information or indeed documents were provided (to support the assertions made), it was and is a statement of the obvious that the highway authority has failed in its statutory duty. To claim statutory authority without any evidence to support action is a matter which smacks of unlawful authority, as was spelt out. That is and was much more than a matter of the Freedom of Information Act being engaged, and surely would in any legitimate context be taken as a serious legal matter.

This is more than just a routine internal review proceeding ..........

As a reminder. the FoI request was in these terms:

'The authority partially closed the Thames Path over the Easter weekend and now have extended that closure see
https://www.lbhf.gov.uk/articles/news/20...

Please provide the statutory authority, notices and associated correspondence, committee or other consideration and discussion documents, papers, etc., that relate to these matters.'

You replied:

'This request is being handled under the Freedom of Information Act 2000.

I can confirm that the information requested is held by Hammersmith and Fulham. I have enclosed copies of the information that is being released to you.'

A last reply, which I've been considering following up, was from the self-styled chief officer (there seems to be a proliferation of 'em) safer neighbourhoods and regulatory services:

1st December 2020
Our reference: FOI 1769903
Dear Mr Pinto,

Thank you for your email of 7th November in which you raise a number of further concerns in relation to this matter. I note that you raise the following issues:

1. You contacted the Council on 16 April 2020 and questioned why the Council had restricted the use of the Thames pathway during this time.
2. You were provided a response from the Council on 28 May 2020.
3. On the 4 July, you wrote again to the Council following receipt of the Council’s email to raise the following concerns:

(i) You question whether there are any present emergency regulations/statutory instruments as provided by the Civil Contingencies Act 1984 that can be used by the Council as asserted. It is noted that in the response sent to you dated 28 May 2020, that this inadvertently referenced the, ‘Civil Contingencies Act 1984’. This was an administrative error and should have referenced the Civil Contingencies Act 2004 instead. We apologise for any confusion caused as a result.

The emergency powers are contained within The Civil Contingencies Act 2004 (CCA, or “the Act”).

s.1(1) states that, ‘ In this Part “emergency” means—

(a) an event or situation which threatens serious damage to human welfare in a place in the United Kingdom

Section 1(2), clarifies that, “For the purposes of subsection (1)(a) an event or situation threatens damage to human welfare only if it involves, causes or may cause—

(a) loss of human life,
(b) human illness or injury…”

In this matter, the Council considered that the rising Coronavirus pandemic was and is a serious threat to loss of life and human illness.

Section 2 of the 2004 Act imposes a duty to assess, plan and advise for contingency planning. And confirms in s.2(1) that this provision applies to “A person or body listed in [Part 1, 2 or 2A of Schedule 1].

Schedule 1(1)(c) clarifies that this provision applies to a London Borough Council and are termed ‘Category 1 Responders’.

Hammersmith and Fulham Council as a London Borough Council/ Category 1 Responders’, are therefore under a duty to assess, plan and advise for contingency planning in the event of such an emergency.

The Act requires Category 1 responders to take up their civil protection duties by reference to their functions. Functions are defined as “any power or duty whether conferred by virtue of an enactment or otherwise”. The reference covers statutory powers and duties, as well as common law powers.

(ii) You are unable to find any legislation or government advice referenced by the Civil Contingencies Act (CCA) 1984. Although you appear to have located the same guidance that was referred to in our response to you dated 28 May 2020.

For the avoidance of doubt, please find below a link to the government guidance. Please note that local authorities seek to rely on Part 1 of the Act and relevant guidance as per the link below.

https://www.gov.uk/guidance/preparation-...

(iii) In your view, under Part 2 of the Act it is only the Crown that has the power either through an Order in Council or a senior Minister acting if that is not possible or a serious delay would be caused. Further that none of the required conditions set out in the Act have been met to enable the implementation of these powers

The Council are not seeking to rely on the powers conferred under Part 2 of the Act, nor has the Council in its response stated that they were seeking to enforce Part 2 of the Act.

As explained above and in earlier correspondence with you, the Council is required to maintain arrangements to warn, and provide information and advice to, the public if an emergency is likely to occur or has occurred. Further, to put in place arrangements to make information available to the public about civil protection matters.

Your attention is drawn to s,2(1)(g) of the Act which states:

“A person or body listed in [Part 1, 2 or 2A of Schedule 1] shall—…
g) maintain arrangements to warn the public, and to provide information and advice to the public, if an emergency is likely to occur or has occurred.”

Section 2, does indeed detail a wide scope of powers and arrangements that the Council must have in plan to ensure that they have up to date plans in place in the event that there is a risk of an emergency occurring.

Section 2(2) further explains that;

“(2) In relation to a person or body listed in [Part 1, 2 or 2A of Schedule 1] a duty in subsection (1) applies in relation to an emergency only if—..

(b) it is likely that the person or body—
(i) would consider it necessary or desirable to take action to prevent the emergency, to reduce, control or mitigate its effects or otherwise in connection with it, and
(ii) would be unable to take that action without changing the deployment of resources or acquiring additional resources.(emphasis added)

In this case, the Council was of the firm view that it was necessary or desirable to partially restrict and limit the use of the Thames pathway to reduce and mitigate the spread of the Coronavirus. The Thames pathway was not fully closed. Such action was only taken to reduce the risk of the virus spreading.

(iv) You refer to the National Police Chieftains Council guidance and Government Guidance in respect of the Act. It appears in your response that you are referring to the making of regulations permitted under Part 2 of the Act of Ministers. As explained earlier, the Council is not seeking to rely upon Part 2 of the Act.

(v) In the Council’s response to your email dated 28 May, you were also informed that the Council was seeking to rely upon section 111 of the Local Government Act 1972 which provides that a local authority shall have power to do anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.

(vi) Further under section 1 the Localism Act 2011, the Council has a general power of competence and the same power to act as an individual generally. This power can be used by the Council to restrict access to the Thames Pathway to ensure the safety of users of Thames pathway during the pandemic which it has done.

n conclusion, the Council carried out its statutory to duty as explained above to plan in the cases of an emergency and to mitigate the effect of the virus spreading further. I trust the above satisfactorily answers your queries but please contact us again if you would like any further information.

Gary Clothier, Hammersmith and Fulham Borough Council

2 Atodiad

Our reference:  1877080
 
Dear Mr. McLeod
 
Thank you for your request for information received on 1 February 2021. I
apologise for the delay.
 
Please find attached our response to your request.
 
Yours sincerely
 
 
Gary Clothier
Investigations and Information Officer
 
Please do not edit the subject when responding to this email. Our case
management system (iCasework) will not deliver your email to the intended
recipient if the subject is amended in any way.
[1]Covid-19 vaccine roll-out. Find out more at nhs.uk/covidvaccine

[2]Find out about the Covid-19 vaccine roll-out at nhs.uk/covidvaccine

[3]Covid symptoms? Get tested now. Test and trace - nhs.uk/coronavirus or
call 119

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