Summary: Miss X complained the Council approved and then changed its mind to reject her application for a dropped kerb causing her to spend £5,250 on a contractor for works that could not then be carried out. The Council was at fault for how it handled her application, causing Miss X an injustice. However, its apology and offer to refund her application fee are appropriate remedies. Miss X chose to pay the contractor up front in cash for the work on a non-refundable basis. The Council was entitled to decide the evidence she has provided for this spend is not adequate to permit it to pay her the £5,250 she claims. Its offer to discuss the invoice with the contractor, once Miss X gives it permission is appropriate.

The complaint

1. Miss X complains the Council rejected her application for a dropped kerb despite having previously approved it in writing.
2. She says that based on its earlier approval she wasted money buying an electric vehicle she now cannot use and paid £5,250 to a contractor that is not refundable.
3. She wants the Council to reimburse her for the non-recoverable expense on works and buying a vehicle she cannot use. Alternatively she wants the Council to change its decision and approve her application.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. I spoke to Miss X and asked the Council questions about the complaint.
8. I wrote to Miss X and the Council with my draft decision and gave them an opportunity to comment. I considered their comments before making my final decision.

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What I found

Background

9. The Council accepts applications for permission to construct dropped kerbs. It has several rules including that crossings are likely to be refused if the Council considers they interfere with various matters including lay-bys. Applicants must also use suitably qualified contractors.
10. Applications must pay the Council a fee covering inspection and administration. Applicants need to provide the Council with sketch plans, copies of any relevant planning permissions and consent from the property owner.
11. Miss X applied to the Council for a dropped kerb, paying an application fee. The Council approved the scheme by email to Miss X on 25 April 2019. The email said the crossing met its criteria for approval. This followed a visit to the proposed site by the Council.
12. The Council set out various approval criteria relating to the technical specification of the scheme. It said her chosen contractor had to complete certain forms (concerning the method of construction) and inform the Council of the start date. It said once it had received this information from Miss X’s chosen contractor it would issue them a permit enabling them to start works.
13. Miss X paid a contractor £5,250 to carry out works, including the drop-kerb. She paid the first £4,750 up front in cash on a non-refundable basis. Before doing so she says she checked with the Council that there was no appeal process and its approval could not be reversed. She also spoke to the contractor about this. She also changed her vehicle for an electric car she would now be able to charge in front of her house because of the works that allowed this parking.
14. Miss X has provided me with copies of two handwritten receipts for £4,750 and £500. The £4,750 receipt is marked as a cash payment for “Drop Kerb and Driveway, non-refundable”. The £500 receipt for the remaining sum is marked as a credit card payment for “Drop Kerb”. After receiving my Draft Decision, Miss X provided me with an invoice for £5,250, dated 29 April, for installation of a driveway, border and drop kerb.
15. The Council then received several complaints about the approval as well as a letter of support for it from Miss X’s MP. A senior officer decided, having considered the complaints and reviewed the scheme, to cancel approval for the work. They decided that the Council should not have given approval because the scheme would be contrary to guidelines not normally permitting crossings to be installed that affected laybys.
16. The Council sent Miss X an email on 9 May 2019 stating it had reconsidered and would not now approve the application. It apologised and offered a refund of the fee Miss X had paid the Council.

Complaint to Council and Ombudsman

17. Miss X complained to her MP in May 2019 about the Council’s decision and then to the Council, asking it to repay the money she had unnecessarily paid to the contractor. The Council replied to say it had explained its decision to refuse the request. It said it would not refund her contractor costs because her agreement was with the contractor and the Council was not involved. It referred Miss X to the Ombudsman.
18. The Council told me it had made a mistake when it initially approved Miss X’s application for a dropped kerb. It later realised the work was contrary to policy. It had apologised and offered to refund the application fee. It should not have approved the application because the proposed vehicle crossing affected a layby.
19. Because of the complaint it intends to give more information on its website about the approval process for crossings affecting communal parking areas. It also now ensures all approvals are checked by a senior member of staff.
20. The Council, in response to my enquiries said Miss X’s receipts were not adequate evidence of spend. After my draft decision it considered the invoice Miss X provided me. It decided it was not satisfied the evidence provided justified payment of £5,250. It has offered to speak to Miss X’s contractor to discuss the matter once she gives consent for it to do so.

My findings

21. The Ombudsman cannot say whether or not the dropped kerb should have been permitted. This is a decision for the Council to have made. It did so having had regard to its policy and so this decision was made without fault.
22. The Council wrongly told Miss X it had approved her dropped kerb when it should have been clear the application was not permitted according to its policy. This was fault. It has offered to repay Miss X’s fee to it and has apologised. It has confirmed it will refund the fee. These are appropriate remedies.
23. The Council can only be expected to cover the reasonable costs incurred by Miss X as a direct and unavoidable result of its fault. She chose to pay the contractor up front in cash. It is unclear, from the invoice provided, which costs stem directly and unavoidably from the Council’s fault
24. Even though she had checked with the Council about there being no appeal process, her decision to pay all the money to a contractor up front in cash was a risk she took, as was her decision to buy a new car.
25. Having reconsidered the matter following Miss X’s complaint to the Ombudsman, the Council was entitled to ask Miss X for evidence to show what she paid, to whom, at what time, and for what service. We would expect it to require that evidence before making a payment in the interests of protecting the public purse. The Council was then entitled to decide the evidence Miss X provided is insufficient to allow it to make the payment to cover the full amount set out in the invoice. There is no fault in how it made that decision. The Council has offered to discuss the matter with the contractor. This is an appropriate action. It needs Miss X’s permission to speak to them.

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Agreed action

26. The Council has agreed that within one month of my final decision it will refund Miss X’s application fee.

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Final decision

27. I have completed my investigation. I have found fault by the Council causing Miss X an injustice. It has agreed to carry out action appropriate to remedy that injustice and prevent its reoccurrence.

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Investigator's decision on behalf of the Ombudsman