Summary: Mr Y complains the Council did not properly consider his application for two dropped kerbs. He says the Council delayed in referring his application to the correct committee. The Ombudsman finds fault in how the Council handled Mr Y’s application and for a lack of clarity in its policy.

The complaint

1. The complainant, who I refer to as Mr Y, complains on behalf of his daughter and her next-door neighbour. He made applications for dropped kerbs, giving access to parking at the front of both of their properties. Mr Y says the Council delayed in making a decision and did not refer his case to the Traffic Regulations Working Party (“the Committee”), in line with its policy. He says the Committee did not properly consider his exceptional circumstances or the details of the plan he submitted. Mr Y also says Council also delayed in responding to his 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. 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 considered the information Mr Y provided and spoke to him about the complaint. I then made enquiries of the Council. I sent a copy of my draft decision to Mr Y and the Council for their comments.

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What I found

Council Policies

6. The Council publishes its Vehicle Crossing Policy and Application Guidance (“the Guidance”) online.
7. The Guidance sets out minimum criteria, including dimensions for the parking area. In the case of a car parked parallel to the road, the parking area should be at least 2.6 metres by 6.5 metres. It says if the parking area does not meet the minimum criteria, the applicant may apply based on exceptional circumstances.
8. There are three stages to the application procedure:
• Application and registration – the Council will acknowledge the application within five working days
• Site assessment and consultation
• Decision notice
9. The Council has a ‘fees and charging’ document, which sets out its fees for a dropped kerb application. In 2018 it charged £130 for a normal application. For an exceptional circumstance application, it charged £190. The Council does not refund the fee if the application is unsuccessful.
10. If the application is based on exceptional circumstances, the Council will refer this to its Traffic Regulation Working Party (“the Committee”). In each Committee meeting report, the Council has a preamble, which includes criteria that it does not consider amounts to exceptional circumstances. This is not set out in the Council’s vehicle crossing policy. The criteria include:
• Presence of historic dropped kerbs
• Existence of parking and waiting restrictions generally
• Number and/or size of vehicles in a household
• Lack of on street parking
• Job requirements i.e. shift working
11. The Council has a complaints policy. The policy says it will respond to complaints at both Stages 1 and 2, within 10 working days. It says it will respond to a complaint at Stage 3 within 35 working days.

Background

12. In October 2018 Mr Y applied for dropped kerbs for both properties. He submitted a plan, which showed the parking areas in front of the houses. He included dimensions of the parking areas as 2.3 metres by 6.3 metres, which is under the minimum criteria.
13. Mr Y says he would utilise two paths with shared access on either side of the parking areas. There is a very low wall on either side, separating the paths, that Mr Y would demolish to make room. However, on the proposed plan it only shows the parking areas covering the space immediately in front of the property, not the pathways.
14. An advisor from the Council telephoned Mr Y and said he would need to submit two separate applications. The advisor said he would need to apply based on exceptional circumstances and the Council would refer his case to the Committee. He did so in mid-November 2018 and paid two £190 application fees. The Council acknowledged Mr Y’s application a few days later.
15. Mr Y applied based on the following exceptional circumstances:
• Parking in the road is used by a business to store surplus vehicles making it almost impossible for residents to park near their homes
• Visitors to a nearby church park in the road making it almost impossible for residents to park in their homes
• Commuters use the road to park and walk to nearby shops, offices and train station
• Mr Y’s daughter is a young, single girl who is concerned that often she cannot park anywhere near her home. She must carry heavy shopping and walk alone in the dark, late at night.
• The neighbour has a young family and has similar safety concerns and problems parking nowhere near their home
• The shortfall in length from the minimum dimensions is compensated by the extra width and added benefit of parking being provided in front of two adjacent properties and the additional manoeuvrability
• Both properties are regularly visited by disabled visitors of the occupiers who find it increasingly difficult to access the property
16. In the Council’s response to our enquiries it says it refused Mr Y’s application in mid-December 2018. However, it has not provided any evidence of this. There are no reports, case notes or correspondence that show the Council considered Mr Y’s application until March 2019. There is also no evidence it completed a site visit in line with its policy. Mr Y says the Council did not make a decision until four months after he submitted the application.
17. In early March 2019, the Council wrote to Mr Y refusing his application. The letter referred to both properties and said the frontages were not large enough. It said any agreement to utilise each other’s property for manoeuvring would not bind future occupiers. The Council was concerned vehicles would encroach onto the footway and impact other road users.
18. A few days later the Council sent Mr Y another letter saying his application for one of the properties was refused. It repeated the area did not meet the minimum criteria. It said the reasons stated were not valid exceptional circumstances but did not give any reasons.
19. In late May 2019 Mr Y complained to the Council. He said the Council did not follow its procedure by referring him to the Committee. He said that if the exceptional circumstances were invalid, the Council should have told him this in the first place.
20. The Council responded in mid-June 2019. It said it refused the application under the correct criteria but accepted the officer did not properly advise Mr Y. It said it had reviewed its procedure and provided additional training to officers. It arranged to refund the extra £50 Mr Y paid for each application. It said that if Mr Y wished to continue with the application it would refer it to the Committee in September 2019.
21. In early July 2019 Mr Y escalated his complaint to Stage 2. The Council visited the site in early July 2019. There are two sets of notes for the visit. Both refer to the same property and not the other. However, the dimensions the officer has recorded are slightly different. On one it records the parking area as 4.7 metres by 2.3 metres. On the other, it records 5 metres by 2.3 metres.
22. The officer recommended not to approve the application. However, there are several boxes in which to give more information, including one titled ‘Reasons for recommendation’. All these boxes are blank.
23. The Council listed Mr Y’s application for the Committee in September 2019.
24. The Council’s responded to Mr Y’s Stage 21 complaint in early August 2019. It said it considers all applications under the standard criteria. If refused, it would progress those being considered by the Committee to the next available meeting. It said Mr Y’s case should have gone to the Committee. It apologised and said it refunded the additional fee as a gesture of goodwill.
25. Mr Y escalated his complaint to Stage 3 in mid-August 2019. The Council says it waited to respond to Mr Y’s complaint until after the Committee meeting.
26. The Committee did not approve Mr Y’s application. The Council has provided a report from the Committee meeting and the minutes appear online. Neither of these documents sets out the Committee’s reasons for refusing the application. Neither gives any insight into how the Committee considered the exceptional circumstances or the rationale behind its decision.
27. There is an appendix to the report, which sets out the visiting officer’s recommendations. The officer says the frontage is not big enough to meet the minimum criteria and the use of each other’s parking areas would not be binding on future occupiers. It does not comment on any of the other exceptional circumstances Mr Y raised.
28. The Council responded to Mr Y’s Stage 3 complaint in late October 2019. It again said it was right to initially refuse the application based on the minimum criteria. It said because several Committee meetings were cancelled and the backlog of cases, officers tried to deal with hose that would not be successful independently of the Committee. It reiterated its apologies but considered the refund of part of the application fees was a suitable remedy.

Findings

29. There are several elements to Mr Y’s complaint:
• The Council delayed in progressing his application
• It did not pass the application to the Committee in line with its policy
• It ignored and disregarded the site dimensions he submitted without explanation
• It did not respond to each stage of his complaint within the published timescales
• It did not refund his full application fee

Delay in processing the application

30. The Council’s response to my enquiries makes the timeline unclear, as it has provided no evidence to support that it made a decision in December 2018 or conducted a site visit. It seems clear from the evidence available that it did not progress the application or make any decision until March 2019, four months after Mr Y applied. There is no evidence the Council updated Mr Y during those four months of any delays due to cancelled Committee meetings.
31. The Council’s policy does not set out any timeframe in which it completes applications. It does not say how often it holds Committee meetings. It is my view this is fault. I understand the time taken may depend on the next availability at a Committee meeting and, in some cases, there may be delays. However, the Council should give applicants some idea of the likely timeframe in which it will process their application. Without any idea of the timeframes involved, applicants could be waiting indefinitely.
32. Mr Y waited four months. In the absence of a timeframe in the policy, I can only say this appears to be a long time for the Council to not progress the application, or update Mr Y about the delays in finding an available Committee meeting. I therefore find fault in the Council’s communication with Mr Y.
33. The Council did eventually hear the matter at a Committee meeting. But it did not do so until nearly a year after he applied.

Did not pass the application to the Committee

34. I find fault, both in the way the Council dealt with and decided Mr Y’s application, and around the clarity in its procedure.
35. The first point to note is that there is no evidence the Council conducted a site visit before its decision letters in March 2019. This is fault as the Council’s policy is clear that it will always conduct a site visit. The only reason it might have not to visit the site, is if the proposed plan already shows the parking area is too small to meet the minimum criteria. However, this will always be the case where the person is applying based on exceptional circumstances. The Council says it is likely to spend more time on site visits in those circumstances.
36. The Council accepts it was fault for officers to decide the application without passing this to the Committee. However, it then confuses the matter by saying officers were correct to refuse the application.
37. The complaint responses say the Council will assess all applications based on the standard criteria. If an application does not meet the minimum dimensions, it will refuse this. It may then pass the case to the Committee to consider any exceptional circumstances.
38. This suggests there is one procedure under which it assesses all applications, with the consideration of any exceptional circumstances being the second stage of that procedure. However, it charges people extra, up front, for considering exceptional circumstances.
39. If someone submits an application that clearly does not meet the minimum dimensions but based on exceptional circumstances, it does not make sense for the Council to refuse that application against the minimum criteria, as a technicality, to then pass it to the second stage, having already charged the higher fee.
40. This also does not appear to reflect what happens in practice. In Mr Y’s case, following the wrongly issued refusal, the Council arranged a site visit. The officer who visited then made recommendations to the Committee. The officer did not himself decide. This suggests the Council deals with exceptional circumstance applications (at least those which do not meet the minimum criteria) separately, which seems a more logical approach.
41. In truth, the Council’s procedure for dealing with exceptional circumstances is not clear as it does not provide any detail in its policy. It only says that if the site does not meet the minimum criteria, the applicant can apply based on exceptional circumstances. There is no detail about what the procedure entails. There is no mention of applications being heard by the Committee. Mr Y only found this out by speaking to an advisor at the Council.
42. The Council should clearly set out its procedure for dealing with applications that do not meet the minimum criteria, but where the applicant wants the Council to consider exceptional circumstances.

Disregarded the site dimensions without explanation

43. I do not find fault in relation to the site dimensions specifically. However, I find fault in the lack of evidence about how the Committee made its decision.
44. One main purpose of the site visit will always be to check the measurements given in the proposed plan. It is clear in this case there is a conflict between the measurements shown on Mr Y’s plan and the measurements the Council took. However, as the site visit is the Council’s assessment, it is normal that the Committee would accept the Council’s own measurements.
45. It might be Mr Y gave a length of 6.3 metres because he either included the alleyways to either side, or the additional manoeuvrability offered by using each other’s parking spaces. However, that is not represented on the plan.
46. My concern is the lack of record of the Committee’s decision. There is nothing in the report or minutes that records its decision, or how it reached this. There is no record in the minutes it considered the dimensions, or any of the exceptional circumstances Mr Y put forward.
47. The Council says this is because it keeps the notes as brief as possible to ensure confidentiality. It has provided the outcome letter it sent to Mr Y, which says the area did not meet the minimum dimension requirements and any future owners may encroach onto the highway. It said the panel was sympathetic to Mr Y’s circumstances but could not identify and extenuating reasons to warrant and exception to the established policy.
48. The letter does not go into any detail about how the Committee considered six of the seven extenuating circumstances Mr Y put forward. It only comments on his point that the owners have an agreement to use each other’s driveways. I cannot say whether the Committee would or would not have accepted his arguments. But there should have been a clear record that it considered each point, and of the reasons for its decision that they did not amount to extenuating circumstances. This is fault as it means there is no evidence the Committee properly considered the points Mr Y raised.
49. I also find fault with the site visit. The notes of the site visit are incomplete as they only include measurements. The officer ticked the recommendation to refuse but did not give any explanation. There were clearly marked boxes for the officer to set out their reasons, which were left blank.
50. The officer explained their rationale in the appendix to the Committee. However, I note the officer does not give any comment on all but one of the exceptional circumstances Mr Y put forward. The one he did comment on was to do with manoeuvring using each other’s driveways.
51. The Council says it charges extra for exceptional circumstance applications as it will often include additional site visits. This suggests the officer visiting the site should have some thought to the exceptional circumstances the person has put forward when inspecting the site and making their recommendation. It was therefore fault for the officer not to record any consideration of these.
52. I find fault with the lack of clarity in the Council’s policy about what it will accept as an exceptional circumstance. It is clear from the preamble mentioned at Paragraph 10 that the Council does have criteria for what it will not accept as exceptional. That criteria would most likely rule out most of Mr Y’s claimed exceptional circumstances.
53. The Council says it charges extra to deter applications where the claimed exceptional circumstances have little merit. Yet it does not set out the criteria it will not accept in its policy. If it did, Mr Y might not have paid £360 to apply based on exceptional circumstances, most of which conflicted with the Council’s criteria.

Complaint responses

54. I find fault in the time taken for the Council to respond to Mr Y’s complaint. It responded to his Stage 1 complaint within its published timescales but took an additional two weeks to respond at Stage 2 and an additional month at Stage 3.
55. The Council says it delayed in responding to the Stage 3 complaint because the Committee meeting was going ahead, and it felt it was better to wait until after this. I understand why this would be helpful. However, the Council did not respond to Mr Y until a month after the Committee meeting, so I remain of the view there was fault.

Did not refund the full fees

56. I do not find fault in the Council not refunding the full fees as it would not normally do so based on an application being unsuccessful. However, for the reasons outlined in the following paragraphs, I have recommended the Council refund the full fees in acknowledgement of the other fault I have identified.

Consideration of Remedy

57. I have found fault in the following areas:
• The Council did not update Mr Y on the delays in progressing his application
• The Council sent Mr Y a decision letter in March 2019, without referring the matter to its Committee or conducting a site visit
• The notes of the site visit are not properly completed
• There is no record of how the Committee considered several of Mr Y’s claimed extenuating circumstances
• The Council’s policy does not set out any timeframes for progressing applications
• The Council’s policy does not set out a clear procedure for dealing with applications that do not meet the minimum criteria, but want the Council to consider exceptional circumstances
• The Council’s policy does not set out its criteria regarding what factors it considers are not exceptional circumstances
• Delays in responding to Mr Y’s complaints
58. I recommend the Council apologise to Mr Y for the fault identified at Paragraph 57.
59. I also recommend the Council refund the remaining full fees of £260. This is to reflect the time and trouble caused to Mr Y by the delays and fault in the Council’s communication. Also, because, but for a lack of information in the Council’s policy, Mr Y might not have applied and paid this fee.
60. I understand that, based on its criteria, the Committee was unlikely to accept most of Mr Y’s claimed exceptional circumstances. However, it should have considered these and explained its reasons.
61. In the absence of any evidence the Committee considered these points, I recommend the Council reconsider Mr Y’s case at the next available Committee meeting. The Council should provide evidence the Committee has properly considered Mr Y’s application, including details of how it considered the exceptional circumstances and any representations Mr Y makes about the dimensions.
62. I also recommend the Council update its procedures to ensure there is a clear record of how the Committee considers applications and the reasons for its decisions in all cases.
63. To address the fault in the Council’s vehicle crossings policy, I recommend the Council review and update its policy as outlined at Paragraph 65.

Agreed action

64. The Council has agreed to, within a month of this decision:
• Apologise to Mr Y for the fault identified
• Refund Mr Y’s remaining £260 fees to acknowledge the avoidable time and trouble and lack of clarity in its policy
• Provide evidence the Council has arranged to reconsider Mr Y’s case at the next available Committee hearing
65. The Council has also agreed to, within three months of this decision, review and update its vehicle crossings policy, to include:
• an indication of the timeframe in which it will progress applications and how it will update applicants if there are delays
• clear details of its procedure for considering applications based on exceptional circumstances
• any factors it will not normally consider as exceptional circumstances

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Final decision

66. The Council is at fault in how the Council handled Mr Y’s application and for a lack of clarity in its policy.

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Investigator's decision on behalf of the Ombudsman