Summary: Mr B complains the Council has not dealt with his application to build a dropped kerb properly, because it has not agreed to construct the dropped kerbs he applied for and hasn’t dealt with his complaint fairly. The Council is at fault because it gave misleading information to Mr B before he made his application and it did not send Mr B full details of the limited work it agreed to when it told him his application had been successful. Mr B believed that his application had been agreed in full and paid the fee, before learning of the error a month later. The Council has offered to refund Mr B’s application fee of £97, the costs he paid for the work of £856.40, pay Mr B £50 for his time and trouble and make changes to decision letters. This is sufficient to remedy any injustice caused.

The complaint

1. The complainant, whom I shall refer to as Mr B, complains the Council has not dealt with his application for extra dropped kerbs properly. Mr B is unhappy the Council has refused to install the number of extra dropped kerbs that he applied for because:
• the same officer dealt with both the Council’s complaint responses and an officer from the department Mr B complained about prepared the Council’s final response.
• the Council’s final response isn’t accurate or impartial and does not include any reference to benefits to pedestrian safety from reduced on street parking.
• the Council’s terms and conditions are unfair and unjust because they say any variations from them do not set precedents.

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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. 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

4. I spoke to Mr B and considered the details of his complaint. I reviewed documents sent by the Council.
5. I have written to Mr B and the Council with my draft decision and given them an opportunity to comment.

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What I found

6. Anyone can ask the Council to construct a vehicle crossing over a footway. The Council can approve the request with or without modification, propose alternative works or reject the application. The Council must have regard to the need to ensure safe access to premises and to facilitate vehicles using the road. (The Highways Act 1980 s184 (11) & (5))
7. The Council has a set of Terms and Conditions about residential dropped kerbs. These state:
• Every site is different and will be assessed individually against the current standards. Older, historic crossovers do not set a precedent.
• If your property already has a dropped kerb, we will only extend or widen it to a maximum of 5.4m. This is the widest dropped kerb that we will allow and equates to a maximum of 4 dropped/flat kerbs and a maximum of 2 ramped kerbs. We will not install any more than 4 flat kerbs. Please do not apply for a dropped kerb wider than this as it will be refused.
• If there are any exceptional circumstances that you would like us to take into account, please detail these in your application. Where it is safe to do so, the County Council may be able to exercise discretion to consider these exceptional circumstances in order to meet its public-sector equality duty.
• Once an application from has been completed and the fee paid, a site visit will take place to assess the application. If the application is approved, a quotation will be sent out and a drawing or photograph showing the proposed works. The drawing should be checked carefully.
• Applications may be refused because they do not meet the criteria within this document and/or for highway safety reasons. All applications that are refused are reviewed by a Senior Manager before the refusal is issued.

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What happened

8. In July 2018, Mr B met Councillor A to discuss his potential application for an extended dropped kerb. An officer from the Council was also present. Mr B had three dropped kerbs and wanted to extend this to seven dropped kerbs to cover the width of his driveway and double garage.
9. Councillor A later asked for advice from officers about what they could tell Mr B about his potential application for dropped kerbs. A junior officer gave advice that one extra dropped kerb may be likely to be approved, but that more than four in total would likely be refused.
10. A Council manager advised Councillor A that they could inform Mr B the Council could not promise anything, but based on informal comments Mr B’s application for an extension to his dropped kerb would be likely to be looked at favourably.
11. Mr B put in an application for an extra four dropped kerbs and on 23 August 2018, the Council held a site assessment meeting with Mr B.
12. The Council considered Mr B’s application. It approved an extra one dropped kerb only, instead of the four that Mr B had applied for.
13. The Council sent a letter to Mr B saying his application had been approved. This should have included a drawing showing the extent of the works approved.
14. The Council’s highways contractor sent letter to Mr B telling him when it intended to complete the work. It marked the extent of the proposed work on the footway.
15. Mr B saw the ground markings and realised the proposed work was less than he had applied for. He contacted the Council and asked for the work not to go ahead.

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Mr B’s Complaint

16. Mr B wrote to the Council saying the work proposed was not what was applied for and approved by the Council. The Council accepted Mr B’s letter as a complaint.
17. Mr B told the Council that he didn’t want to complain, he wanted the Council to complete the work he had applied for. He asked the Council to decide how to deal with the issues he raised.
18. Council responded to Mr B at stage 1 of its complaints process.  The Council’s response stated:
• the legal background to dropped kerbs and the Council’s terms and conditions.
• Mr B had applied for works outside the terms and conditions.
• existing historical dropped kerbs do not set a precedent.
• advice given by Council officers was altered so that it was not accurate and did not reflect the terms and conditions.
• there were issues around the letter sent to Mr B which said his application had been approved. The Council agreed that if Mr B had not received a drawing he may have expected to receive what he had applied for. The Council said it would reword its approval letters.
• it had applied the terms and conditions correctly.
• it would refund the cost of Mr B’s application (£97), the cost of works he paid for (£856.40) and an extra £50 for his time and trouble.
19. Mr B told the Council he was not happy with the stage 1 response. The Council responded to Mr B at stage 2.  It upheld its decision at stage 1 in considerable detail and re-iterated the same offer made at stage 1.

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Analysis

20. The Council’s terms and conditions about dropped kerbs were clear and available. Mr B says the Council led him to understand that a greater number of dropped kerbs would be approved than stated in the terms and conditions.
21. The pre-application information given to Mr B by his Councillor was different from the first officer advice provided to Council managers. The Council accepted this was wrong because he may have been led to believe that an application may be successful if he applied. I consider that this was fault by the Council.
22. As the Council says in its stage 2 response, it is impossible to know what was said between Mr B and the Council at the site meeting held in August 2018. The Council officer who conducted the site visit was clear in his advice to colleagues before the site visit that a fourth dropped kerb would likely be approved, but more than four would probably be refused.   On the balance of probabilities, I do not consider the same officer would have told Mr B it was likely that an application for more than four dropped kerbs would be approved by the Council.
23. The Council considered Mr B’s application and decided to approve a more limited dropped kerb than that which Mr B had applied for.   The Council decided to approve only one extra dropped kerb, rather than the extra four Mr B applied for. This was consistent with both the Council’s published terms and conditions and the previous advice of the officer who conducted the site visit. The Council complied with the law and its guidance when it determined Mr B’s application.
24. The Council sent Mr B a letter advising that his application had been successful. It agrees a copy of a drawing showing the extent of the approved works to Mr B should have been sent with that letter.
25. The Council accepted in its own complaint responses, it was unlikely a drawing was sent. This was fault by the Council, because it did not give Mr B clear information about the decision it had reached about his application for dropped kerbs. Mr B relied on the Council’s incomplete decision letter when he decided to pay the quoted costs of the work.

Council officers dealing with Mr B’s complaint

26. Mr B complained about a service delivered by the Council’s Environment and Infrastructure Department. An officer from that department prepared the stage 1 response.
27. Mr B wrote to the Customer Service Manager for the Environment and Infrastructure Department to say he was unhappy with the stage 1 response. The Customer Service Manager prepared the stage 2 response from the Council.
28. Both officers were well placed to understand and investigate Mr B’s concerns. Neither played any role in deciding Mr B’s application. This is not fault by the Council.

The Council’s stage 2 response

29. The Council’s stage 2 response is detailed, comprehensive and evidence based. It correctly identified the issues that led to Mr B’s complaint and addressed them.
30. As stated in paragraph 6 above, the Highways Act 1980 does not require the Council to consider benefits to pedestrian safety accruing from reduced on street parking. This is not fault by the Council.

Precedent

31. The stage 2 response by the Council agrees dropped kerbs exist across the County that do not meet the criteria in the Council’s terms and conditions. The Council says it does not have records of them all, and that historical dropped kerbs may have been constructed:
• because of historic planning permissions.
• by bodies exercising historical highways functions using different criteria.
• by error or illegally.
32. Mr B is entitled to expect the Council to consistently follow its existing terms and conditions.
33. The Council is not bound by different terms and conditions used previously, either by itself or any other body which exercised historic highway functions.
34. Any benefit derived by other people from dropped kerbs that are inconsistent with the Council’s terms and conditions is not an injustice to Mr B.
35. The Council complied with the law and its guidance when it determined Mr B’s application. This is not fault by the Council.

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What has the Council done?

36. The Council has offered to refund the costs of Mr B’s application and the quoted costs of work that he paid, to ensure he is not out of pocket, as well as pay him £50 for his time and trouble. It has also made changes to its decision letters to make reference to drawings of approved works and to draw applicants’ attention to the Council’s terms and conditions.

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Final decision

37. The Council was at fault in the way in which it considered Mr B’s application for a dropped kerb. Any injustice has already been remedied by the Council’s offer to refund the costs involved and make an additional payment and so no further remedy is required. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman