Summary: the Council misled Ms B about whether it would enforce an H bar before she paid to have it painted and delayed responding to her complaint. That caused Ms B to go to unnecessary expense and led to her having to go to time and trouble to pursue her complaint. An apology and payment to Ms B is satisfactory remedy for the injustice caused.

The complaint

1. The complainant, whom I shall refer to as Ms B, complained the Council:
• misled her about whether it would enforce an H bar before she paid to have it painted; and
• delayed responding to her complaint.

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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. As part of the investigation, I have:
• considered the complaint and Ms B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided;
5. Ms B 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

Background

6. Ms B paid for a dropped kerb outside her property. After having the dropped kerb installed she asked the Council about having an H bar marking. The Council approved that in December 2018. Due to the layout of Ms B’s road the H bar marking extends beyond either side of her dropped kerb. Ms B expected the Council to take enforcement action if somebody parked on the H bar marking as at that point the Council’s website said it could issue a penalty charge notice to vehicles parked partly or fully on the H bar. The Council has since explained it can only issue a penalty charge notice if a vehicle blocks the dropped kerb. If a vehicle parks on the part of the H bar marking which is not in front of the dropped kerb the Council cannot act.
7. Ms B put in a complaint to the Council in April 2019. The Council responded to that complaint in October 2019. The Council said the officer that visited Ms B before the H bar was painted told her she would need to contact the police if somebody blocked her H bar. The Council also said the officer that carried out the site visit for the H bar told her the marking itself was not enforceable and would rely on Ms B’s neighbour respecting it. The Council said the officer told her only the dropped kerb was enforceable and said it had agreed a wider than usual H bar marking due to the particular issues with Ms B’s access. The Council said it could not enforce the H bar marking because it extended beyond the tapered kerb but it would enforce any vehicle parked on the dropped kerb. The Council reminded Ms B if vehicles were causing an obstruction the police had the power to issue a fixed penalty notice. The Council accepted though the information on the website could be misinterpreted where the H bar extends beyond the tapered kerb, as in Ms B’s case. The Council has since amended its website to make clear it can only issue a penalty charge notice if a vehicle is parked partly or fully in front of the dropped kerb.

The Council’s dropped crossing policy

8. The Council’s policy says a resident may wish to apply for a white H marking after the kerb has been dropped. The policy says this is an advisory marking to show motorists there is a dropped kerb in place and they should not park in front of it.
9. The information on the Council’s website at the time Ms B applied for an H bar marking said the Council could enforce the H bar. The Council’s website said it could issue a penalty charge notice to vehicles parked partly or fully on the H bar road marking.
10. The Council changed the information on its website following consideration of Ms B’s complaint. The Council’s website now says it cannot enforce an H bar marking. The website says the Council can only issue a penalty charge notice to vehicles parked partially or fully in front of the dropped crossing or kerb.

Analysis

11. Ms B says the Council misled her about whether it would enforce an H bar before she paid to have it painted. Ms B says if she had known the Council would only issue a penalty charge notice if a car was parked over her dropped kerb and not when it was parked over the H bar marking she would not have paid for it. In contrast the Council said, in its response to Ms B’s complaint, when visiting her to discuss the H bar marking the officer told her because the H bar proposed for her property extended further than the dropped kerb it would be advisory only and the Council could not take enforcement action unless a vehicle was parked over the dropped kerb.
12. I have carefully considered the documentary evidence. In this case it is clear Ms B’s H bar marking is unusual as due to the layout of Ms B’s road the H bar is curved and extends beyond the dropped kerb at both sides. I would have thought most H bars, and the Council says it is 99.9% of H bars, extend only to the width of the dropped kerb. That would mean the Council could enforce because parking on the H bar would also mean parking in front of a dropped kerb. As that is not the case for Ms B I would have expected the Council to explain because her H bar extended further than the dropped kerb the Council could not take enforcement action if a vehicle blocked the end of the H bar but not the dropped kerb itself. I recognise the Council says it did tell Ms B that. However, the officer that visited Ms B’s property to discuss the painting of the H bar did not keep notes from that visit. Nor did he follow up after the visit in writing or by email to explain what the H bar involved. Ms B denies the officer gave her that information. Without documentary evidence to show the Council explained to Ms B what it could and could not enforce before she agreed to have the H bar painted I could not say the Council had properly explained the situation to her. That is fault.
13. The Council says its policy on dropped crossings makes clear the H bar marking is advisory only. The Council therefore says Ms B should have known it could not take enforcement action if somebody parked a vehicle on the H bar. I set out in paragraph 8 the wording included in the Council’s policy. I agree the wording refers to the H bar as advisory. The policy though does not refer to H bar markings which extend beyond the width of a dropped kerb and the implications of that. Ms B also had access to information on the Council’s website about whether it could enforce an H bar marking. I refer to that information in paragraph 9. Had Ms B checked the Council’s website before she agreed to the H bar marking she would have likely believed the Council could take enforcement action if somebody parked on the H bar, irrespective of whether a vehicle was also blocking the dropped kerb. I say that because the information held on the Council’s website, until it corrected it, stated its officers could issue penalty charge notices to vehicles parked partly or fully on the H bar marking. There was no suggestion in the information held on the Council’s website at the time to suggest this would only apply if the H bar extended only as far as the dropped kerb itself. Given the specific set up for Ms B’s H bar, the fact the policy does not refer to circumstances where the H bar extends further than the dropped kerb and the incorrect information held on the Council’s website at the time I consider the Council misled Ms B about whether the Council could enforce the H bar. That is fault.
14. I now have to consider what injustice that fault caused Ms B. The Ombudsman normally seeks to put the person complaining back in the position they would have been in but for the fault. Ms B says if she had known the Council could not enforce if a vehicle parked on the H bar but was not blocking her dropped kerb she would have had no reason to pay for the H bar. I accept Ms B’s reasoning here given the particular layout in her road. I therefore consider it likely, on the balance of probability, Ms B would not have paid for painting of the H bar had she known the Council could not enforce it if somebody parked on it unless the vehicle was also parked in front of her dropped kerb, which would have meant the Council had enforcement powers anyway. In those circumstances I recommended the Council pay Ms B £180 to reflect the cost of the H bar. The Council has agreed to that recommendation and has also agreed to remove the H bar, at its own expense, to avoid any confusion in future.
15. I am also concerned about how the Council dealt with Ms B’s complaint. Although Ms B put in a complaint in April 2019 and continued to chase that complaint there is no evidence the Council responded to it until October 2019. That is fault. As well as the financial remedy I recommended in the previous paragraph I also recommended the Council apologise to Ms B and pay her £100 to reflect the time and trouble she has had to go to pursuing her complaint. The Council has agreed to that recommendation.

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Agreed action

16. Within one month of my decision the Council should:
• apologise to Ms B for providing her with misleading information about whether it could enforce parking on the H bar and for the delay responding to her complaint; and
• pay Ms B £280 to reflect the cost of the H bar and to recognise the time and trouble she had to go to pursuing her complaint and make arrangements to remove the H bar.

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Final decision

17. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman