Summary: Mr X complains about the Council’s decision to reinstate a grass verge outside his home, which it mistakenly gave him permission to remove. Mr X feels the Council’s offer his additional costs is unreasonable. The Ombudsman finds the Council has acted reasonably, but has not properly explained how it calculated the reimbursement offered to Mr X. The Council has agreed consider evidence of the costs Mr X incurred and make a reasonable offer to reimburse him based on this. The Council has also agreed to make a payment to refund the licence fee and to recognise the time and trouble caused to Mr X.

The complaint

1. Mr X complains about the Council’s decision to reinstate a grass verge outside his home, which it mistakenly gave him permission to remove. Mr X says the Council has failed to take a pragmatic approach to resolving the issue. Mr X feels the Council is wrong to offset the amount it will reimburse the costs he incurred in removing the verge against the amount he would need to spend to comply with terms of the permission it gave him for an additional dropped kerb. Mr X says the Council’s action has caused him considerable unnecessary expense and trouble. He would like the Council to reverse its decision and remove the grass verge outside his property.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I have spoken to Mr X and considered the information he has provided in support of his complaint.
6. I have considered the information the Council has provided in response to my enquiries.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What happened

8. Mr X applied for two licences from the Council in June 2017. These were for an additional dropped kerb to his home and to remove the grass verge on the pavement outside his property. The Council approved both licences and gave Mr X two weeks to complete the works. The Council informed Mr X he must use a contractor that is allowed to undertake work on highways to comply with the licences it had issued. The Council provided Mr X with a list of contractors in the area that met the criteria to undertake this type of work.
9. In March 2018, the Council wrote to Mr X to inform him the dropped kerbs at his home were wider than his licence permitted. The Council also told Mr X that it should not have given him permission to remove the grass verge outside his property and it would need to be reinstated. The Council advised Mr X the Parish Council had raised concerns with it about the removal of the grass verge, stating this was not in keeping with the rest of the road where Mr X lives.
10. Mr X contacted the Council immediately to dispute this. He argued he had been given permission to remove the grass verge and had done this in good faith. Mr X also approached the Parish Council to ask about its concerns with the grass verge removed outside his home. Mr X says the Parish Council told him it had not insisted the verge be reinstated outside Mr X’s home. Mr X invited the Council to approach the Parish Council for confirmation of this. The Parish Council told the Council it felt it had no standing to insist Mr X reinstated the grass verge because the Council had issued a licence permitting this. The Parish Council also said it had concerns the removal of the verge at Mr X’s property would set a precedent that would allow others to obtain the same permission, when the Parish Council was seeking to retain as many green areas as possible in the parish.
11. On 12 April 2018, the Council had a site meeting with Mr X, the Parish Council clerk and colleagues from the Streetworks Team to agree a way forward.
12. The Council wrote to Mr X on 6 June 2018. It said Mr X would need to reduce the width of the two dropped kerb accesses to his property as these exceeded the maximum width allowed (4.6 metres). The Council also informed Mr X it would reinstate a portion of grass verge between the two dropped kerb accesses at its own cost. The Council invited Mr X to contact it to arrange a time for the remedial work to take place.
13. Throughout the remainder of 2018, Mr X had ongoing correspondence with the Council about the grass verge reinstatement. Mr X argued the grass verge was not properly maintained and frequently fouled by dogs in the area. Mr X and his mother had been left to keep the area clear and this had exacerbated health conditions they both had. Mr X felt the Council should make an exception in his case considering the impact on his and his mother’s health and that removal of one grass verge would not set a precedent that other grass verges in the area could be removed.
14. Mr X’s correspondence with the Council culminated in a stage two complaint in November 2018. The Council responded in December 2018. The Council apologised for the error that led to it giving Mr X a licence to remove the grass verge. The Council said it had taken steps to ensure the same error with licensing did not occur again. The Council acknowledged the health issues and dog fouling problems Mr X had highlighted but was not persuaded these outweighed the reasons for reinstatement of the grass verge. The Council said it wanted to put Mr X back in the position he would have been in but for its error. The Council offered to arrange a site visit to estimate the cost Mr X had had to incur to remove the grass verge. It said it would offset this against the cost Mr X incurred in installing the second dropped kerb access to his home and would reimburse the difference. The Council also offered to include an estimate for the costs involved in Mr X reducing the width of his dropped kerbs, which he needed to do to comply with the licence, if this was appropriate. The Council also offered Mr X £100 in recognition of the time and trouble caused to him by its error.
15. Throughout the first half of 2019, Mr X and the Council had further correspondence following on from the stage two complaint response. Mr X continued to object to the Council’s decision to reinstate the grass verge outside his home. He felt the Council had ignored the root cause of the issue that had led to him applying for its removal. Mr X felt the Council had failed to properly maintain the grass verge outside his property and this had caused him and his family inconvenience. The Council explained on more than one occasion that the Parish Council was responsible for maintaining the grass verge and suggested Mr X approached it to raise his concerns about this as it could not assist him.
16. Mr X continued to correspond with the Council to ask if there was another way to resolve the issue. He asked if the Council would be agreeable to reinstalling grasscrete or astro-turf to the area outside his home as alternatives. The Council explained the reasons why these alternatives were not suitable for the reinstatement. The Council also continued to press for Mr X to meet with it so they could agree an estimate for the costs the Council needed to reimburse to him. Mr X declined the offers to include the costs involved in reducing the width of his dropped kerbs accesses as he felt these issues should be kept separate.
17. Mr X completed the work to reduce the width of his two dropped kerbs accesses at the beginning of June 2019. He approached the Ombudsman for help at this point because he felt the Council should not have reinstated the verge.
18. The Council sought an estimate for the outstanding work to reinstate the grass verge outside Mr X’s home at the end of June 2019. The Council completed the work to reinstate the grass verge outside Mr X’s property on 2 July 2019.
19. The Council obtained an estimate for the works at the end of July 2019. The estimate took account of the difference between the work Mr X undertook and the work he would have undertaken had he not received permission to remove the grass verge. The amount calculated was £326. The Council offered to reimburse this amount to Mr X following the Ombudsman’s initial enquiries. The Council also offered to increase the £100 payment it had offered for the inconvenience, time and trouble caused to Mr X to a payment of £150.
20. Mr X asked the Ombudsman to investigate his complaint and provide an independent view on the Council’s action and its offer to remedy the injustice caused to him. Mr X has provided the Ombudsman with a bank statement showing he paid the Council approved contractor £6,570 for the work it did at the front of his property.

Analysis

21. The Council identified it had made an error when permitted Mr X to remove the grass verge outside his home. The Council acted quickly to notify Mr X on discovery of its error. The Council has also taken steps since to ensure this kind of error is not repeated.
22. Mr X says he felt the Council had punished him even though he obtained permission before carrying out the work outside his property. He completed the work to remove the grass verge in good faith. The tone of the Council’s correspondence with Mr X about this issue has been professional and courteous throughout. I have seen nothing to suggest the Council was blaming Mr X for its error or implying Mr X had not completed the work to a high standard.
23. The Council has also considered Mr X’s individual circumstances and decided these do not outweigh the reasons for reinstating the grass verge. This is a decision the Council was entitled to make. I have not seen any evidence of fault in how this decision was reached and so cannot question its merits. I am not able to reverse the Council’s decision to reinstate the grass verge simply because Mr X feels it is unfair.
24. There is no doubt however that Mr X has been put to additional trouble and inconvenience by the Council’s actions. His frustration at this situation is entirely understandable.
25. The Council has sought to put Mr X back in the position he would have been but for its error, has considered how it can remedy the inconvenience it has caused and even increased the amount it has offered to pay Mr X for the time and trouble caused. While I commend this approach, I do not consider it went far enough to remedy the injustice caused to Mr X.
26. The Council said in its stage two complaint response that it would work with Mr X to negotiate an agreeable cost for the additional works he paid to remove the grass verge. While the Council did not offset this cost against the works Mr X had to do to reduce the width of the two dropped kerb accesses at Mr X’s request, it did not in my view work with him to arrive to an agreeable figure for the difference in costs as promised.
27. The Council should have provided Mr X with details of how it arrived at the estimate of £326 for the difference between the work he did and the work he would have done with the grass verge removal. This is fault as it does not comply with the commitment made to Mr X in the Council’s stage two complaint response.
28. When Mr X approached the Ombudsman, he had no way of knowing if the Council’s estimate included offsetting of the works needed to reduce the width of his dropped kerb accesses. This lack of clarity has caused Mr X avoidable uncertainty.
29. To fully place Mr X back in the position but for the Council’s fault, I believe it should take account of the licence fee Mr X paid for permission to remove the grass verge. Since he has not had the benefit of this licence, there was scope for the Council to offer him a refund of that fee.
30. Since making his complaint, Mr X has provided the Ombudsman with a copy of a bank statement showing how much he paid the contractor for the work. He feels the Council should reimburse the entirety of his costs or at least contribute a significant amount towards them. The amount shown on the bank statement of £6,570 is considerably higher than the amount estimated by the Council (£326). I am not satisfied Mr X’s bank statement provides a sufficient level of detail of the costs incurred. It is not possible to discern what would be a reasonable amount of reimbursement from this information. It is also a piece of evidence the Council has not yet had the opportunity to consider.
31. It seems reasonable to ask the Council to take account of the actual costs Mr X incurred in removing the grass verge when considering the amount of reimbursement it should offer. The remedies the Council has agreed to below reflects this approach.

Agreed action

32. Based on the faults identified above the Council has agreed to complete the following recommendations.
33. Within two months of the final decision, Mr X will provide the Council with a copy of the approved contractor’s invoice or other evidence which provides a sufficient breakdown of the costs for the works it completed for him.
34. The Council will consider the evidence Mr X provides and make a reasonable offer to reimburse the costs he incurred in removing the grass verge outside his home based on this. The Council has agreed to complete this action and pay the reimbursement to Mr X within one month of receiving evidence from Mr X as described in paragraph 33.
35. As an alternative, the Council has agreed to reimburse the estimated costs of £326 within three months of the date of the final decision in the event of Mr X not providing the evidence described in paragraph 33.
36. Within one month of the final decision, the Council has also agreed to

• provide Mr X with details of how it arrived at the estimated figure of £326;
• refund the fee Mr X paid when he applied for permission to remove the grass verge; and,
• pay Mr X £200 for the time and trouble caused, this figure is increased to account for the inconvenience caused to Mr X in bringing his complaint to the Ombudsman and the uncertainty caused by the Council’s failure to fully complete the actions it committed to in its stage two complaint response.

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Final decision

37. I have completed my investigation and found fault with the Council. This fault caused Mr X injustice and the Council has agreed to it take the action I have recommended to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman