The Ombudsman's final decision:
Summary: Ms X complained the Council did not assess her application for a vehicle crossover fairly. There was no fault in how the Council assessed her application and came to its decision. However, there was fault in the Council’s delay in responding to Ms X’s appeal request. The Council has agreed to apologise to Ms X for the delay and the frustration caused by the delay.
- Ms X complained the Council applied its vehicle crossover policy inconsistently by approving her neighbour’s applications for vehicle crossovers but not hers. Ms X also complained the Council took too long in dealing with her correspondence in relation to her application and it failed to address the points she raised.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
- 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)
How I considered this complaint
- I considered Ms X’s complaint and the information she provided.
- I have considered the information I received from the Council.
- Ms X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments from Ms X. The Council informed me it agreed to my findings and recommendation.
What I found
- Ms X applied for a dropped kerb in September 2016. Her application was initially refused due to the positioning of a tree. Ms X requested her local ward Councillor investigate this further as her neighbours with trees similarly placed had their applications approved by the Council.
- Following representations from local Councillors and Ms X, the Council agreed to offer a conditional “no objection”. The condition was that there would be no objection to Ms X’s application provided the dropped kerb is only constructed a maximum of 2 kerb lengths from the existing dropped kerb.
- In December 2016, Ms X paid the application fee of £50. In January 2017, the Council provided Ms X with a quotation for the dropped kerb and requested she confirm if she would like to proceed.
- Ms X rejected the conditional offer and submitted a formal complaint to the Council.
- In February 2017, Ms X wrote to the Council and said she would like to appeal the decision as she was unhappy with the size of the dropped kerb the Council had agreed to. Ms X stated her neighbour had a dropped kerb a metre away from the tree whereas she had been informed she would need to leave three metres. Ms X also said there were other properties nearby with dropped kerbs constructed less than three metres away from a tree.
- Ms X says she did not receive a response to her appeal and she called the Council several times.
- On 6 September 2017, Ms X wrote to the Council again and informed it she had spoken to several council officers and departments. She complained about the lack of communication from the Council and the time it was taking to respond to her.
- On 21 November 2017, the Council informed Ms X that Highways had no objection to her application but Green Spaces did. Green Spaces is a team responsible for council owned playgrounds, parks, open spaces and grass verges in the borough.
- It said Green Spaces stood by its decision not to support the crossover application. There was no reference to Ms X’s appeal.
- Green Spaces said it was not viable to construct a larger crossover with the tree in such close proximity without affecting its health and stability.
- In January 2018 Ms X complained to the Council that her case had been dealt with unprofessionally by the Council, there was a lack of communication and she was disappointed that she had to chase the Council for a response. Ms X highlighted the properties that recently had dropped kerbs constructed where there were trees in the vicinity. Ms X questioned the fairness of the Council’s decision and requested it looked at her application again.
- The Council investigated Ms X’s complaint and responded in February 2018. In its response, the Council said the following:
- Highways have no objection to Ms X’s application but it can only be progressed with the support of Green Spaces;
- The matter was referred again to Green Spaces to reconsider their decision after Ms X submitted her representations but stood by their decision;
- The conditional offer of a smaller crossover was still available to her;
- Her appeal against the decision to refuse her application was not supported.
- The Ombudsman cannot question a Council’s decision if the process it has followed when making that decision has been properly followed.
- The Highways department of the Council informed Ms X it had no objection to her application as long as it was supported by Green Spaces.
- Green Spaces has decided that a larger crossover will impact on the health and stability of the tree. This decision was made after a site visit.
- The Ombudsman cannot criticise this decision even though Ms X disagrees with it. It is the Council’s professional judgement to make. I acknowledge Ms X feels she has been treated unfairly as her neighbours applications for dropped kerbs have been approved. However, each case is assessed by the Council on individual merit. A professional has assessed Ms X’s application and has offered her a smaller crossover that will not impact on the health and stability of the tree. Ms X is entitled to accept this offer if she wishes. There is no fault in how the Council arrived at its decision.
- The Council advised me an appeal can be made to the Highways Manager in writing. If it involves a non-highway issue (such as a tree) then this is referred to the relevant section and the response may take a little longer. Ms X appealed the decision of her crossover application in February 2017. Although the Council acknowledged receipt of her appeal in March 2017, it failed to provide her with an outcome to her appeal in writing until February 2018. This is fault. Ms X contacted the Council on several occasions during this period to chase a response causing her to feel frustrated.
- To acknowledge the time and trouble Ms X spent in chasing a response from the Council in relation to her appeal and the frustration it caused, the Council has agreed to apologise to her in writing within four weeks of this decision.
- There is no evidence of fault in the way the Council assessed Ms X’s crossover application. However, there is fault in the Council’s delay in responding to Ms X’s appeal request. The Council has accepted my recommendation to remedy the injustice. I have therefore completed my investigation of this complaint.
Investigator's decision on behalf of the Ombudsman