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London Borough of Croydon (20 005 159)

Category : Transport and highways > Other

Decision : Upheld

Decision date : 21 May 2021

The Ombudsman's final decision:

Summary: Ms X complained about the Council’s decision to refuse her application for a dropped kerb. The Ombudsman found fault causing injustice when the Council failed to show it properly considered Ms X’s son’s disability and failed to properly explain its decision. The Council agreed to review its procedures and offer a remedy.

The complaint

  1. Ms X complained about the Council’s decision to refuse her application for a dropped kerb in front of her house. She said the Council incorrectly applied its policy and did not give proper consideration to the exceptional circumstances she raised.
  2. Ms X is unhappy the Council made her fight for the right to park in front of her house and made her justify that her son’s autism is a severe issue. She said this was unjust and caused great distress.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. As part of the investigation, I have considered the following:
    • The complaint and the documents provided by the complainant.
    • Documents provided by the Council and its comments in response to my enquiries.
    • The Highways Act 1980 (section 184).
    • The Equality Act 2010 (section 149).
  2. Ms X 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

  1. Any person may ask the council for a vehicle cross over (dropped kerb).
  2. In deciding a crossover application, the law says councils should “have regard to the need to prevent damage to a footway or verge”. And, in deciding what work is necessary, councils must also ‘have regard, so far as practicable, to the need both to ensure safe access to/from premises; and to facilitate moving traffic in highways.’ The council must tell the applicant of its decision on their application.
  3. The Council ‘s crossover application form includes terms and conditions which set out the criteria on which an application is considered. These include:
    • Condition 1 – ‘Parking in front of an entrance or on any part of the pavement including the dropped crossing is an offence under Section 137 of the Highways Act 1980 as is allowing any vehicle parked within the property to overhang any part of the highway/pavement and is therefore not permitted’.
    • Condition 2 - ‘Parallel parking is not actively promoted but may be considered in exceptional circumstances. The full width of the vehicle must be contained within the property boundary, as well as clearance of one metre for emergency access and egress from the premises. The vehicle must be able to cross the footway and enter and exit the property in a single movement. No part of the motor vehicle shall overhang onto the footway.’
  4. The Council will refuse applications which do not meet one or more of the criteria. Only in exceptional circumstances will the Council consider applications not meeting one of the criteria.

What happened

  1. Ms X sent a dropped kerb application to the Council on 29 June 2020.
  2. The Council declined Ms X’s application on 15 July because the area in front of her home is 3.2m but the length of her car in 4.2m. it said Condition 2 was therefore not satisfied.
  3. On 16 July, Ms X emailed the Council and said she wanted permission to park parallel due to her son’s disability. She said having to park away from the house is distressing for him, especially in the dark, and having a dropped kerb will increase their quality of life. Ms X provided the Council with a medical report for her son.
  4. The Council confirmed on 20 August that, after reviewing Ms X’s application, it remained declined for two reasons:
    • Her application did not meet condition 2 of the Council’s terms and conditions, because the frontage of her home is 3.2m and the vehicle length is 4.2m.
    • Parallel parking is not permitted.
  5. The Council suggested Ms X apply for a disabled parking bay outside her home instead.
  6. Ms X asked to appeal the Council’s decision on 21 August. She said the Council’s decision was not based on the information stated in its terms and conditions. She also said her son’s condition should be considered an exceptional circumstance which allows her to park parallel to her home. The Council referred the matter to its complaints team.
  7. The Council wrote to Ms X on 24 August to clarify why it refused her application. It said the front of her home is not wide enough for her car to park straight on to the house without overhanging the pavement. While the front of her home is wide enough to park parallel, the Council’s criteria does not support this. It said it considered details about her son’s condition but cannot make an exception.
  8. The Council sent its final complaint response on 17 September. It said the exceptional circumstances referred to in its terms and conditions are when a resident at the house has a ‘severe disability’. In those cases, the full width of the vehicle must fit within the property boundary, with a clearance of one metre for emergency access.
  9. The Council did not agree its refusal to accept Ms X’s son’s condition as an exceptional circumstance was indirect discrimination. It said it assessed her application under the current criteria and considered her son’s condition before making a decision. It is for the Council to decide whether to allow parallel parking and the complaints process cannot overturn that.
  10. Ms X brought her complaint to the Ombudsman on 22 September 2020. She said the Council’s terms state:
    • ‘Car width should fit in the property boundary with 1m clear’, but her car is 1.7m wide and her parking bay is 3.5m wide.
    • ‘Parallel parking is not actively promoted but is considered in exceptional circumstances’, but its decision letter to her states ‘parallel parking is not permitted’.
  11. Ms X told me her son has sensory processing difficulties. He relies on routine and it is distressing for him to park in different places or streets. He can become anxious walking home when it is dark. It takes Ms X time to console her son and persuade him to get home from the car. He can become inconsolable if startled and will scream, tremble, cover his ears with hands, and refuse to move. If this happens, Ms X must carry him home. This has become increasingly difficult as he gets older. On other occasions, Ms X told me her son has wet himself. This is extremely stressful, and Ms X wants to safeguard her son, as well as herself and daughter.
  12. Ms X said the Council did not discuss this with her or ask for further information after she sent her son’s medical evidence. Ms X does not want a disabled bay, because her son is very self-conscious about his condition and would not want to be seen as disabled. She has not applied for a blue badge as she understood this was just for physical disabilities.

Response to my enquiries

  1. The Council told me its policy is to prevent parallel parking on safety grounds unless there are exceptional circumstances. Exceptional circumstances make allowances for people with severe disabilities, such as being unable to walk or terminally ill.
  2. Vehicle length is relevant because the Council only wants 90-degree parking. The length of Ms X’s vehicle means it would overhang the kerb if she parked at a 90-degree angle. The width of the vehicle is relevant in circumstances where the Council has granted an exception, as there must be enough room for emergency entry/exit.
  3. The Council told me its officers considered the medical report Ms X provided, but they are not medical experts. While the Council recognises autism is a disability it does not consider it meets the ‘severely disabled’ criteria.
  4. The Council told me that, in the absence of specific disability guidance for highways officers, they can consider the blue badge guidelines for evidence of a severe disability. However, it does not follow that officers will always approve a request based on someone qualifying for a blue badge.
  5. The Council confirmed it did not discuss Ms X’s son’s condition with her or take any advice about its impact.
  6. As the highway authority, the Council has no obligation to let anyone have a crossover. It must take account of safety and other considerations when deciding applications.
  7. The Council said it will review the exceptional circumstances clause from its crossover policy, with a view to removing it. It will also revise its online advice page by removing the exceptional circumstances statement.

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Analysis

  1. The Council’s terms and conditions are clear that it prefers cars to park straight on, not parallel to the road, and they must not overhang onto the pavement.
  2. Based on the measurements of Ms X’s vehicle and the front of her home, this could not be achieved when parking straight on. Ms X is therefore not entitled to a crossover under the Council’s policy, unless she can show exceptional circumstances.
  3. I can understand why Ms X found the Council’s refusal letter dated 16 July confusing, because it said she did not meet Condition 2 of its terms. Condition 2 refers to vehicle width and allowing space for emergency access. On the evidence seen, Ms X’s car can achieve this. However, Condition 2 also states no part of a vehicle should overhang onto the footway. It was the length of her car, and the overhanging, which was the issue here. I consider the Council could have been clearer that was the reason it refused Ms X’s application. The Council should then have gone on to say parallel parking is not promoted unless there are exceptional circumstances.
  4. The Council’s second refusal letter, dated 20 August, repeated the confusing reference to Condition 2, and to the length of Ms X’s car. Condition 2 does not mention car length, so I can see why Ms X argued over this point. The Council’s letter also said parallel parking is not permitted, which is wrong and is not what its terms and conditions state.
  5. The Council should also have confirmed its views on exceptional circumstances in this decision letter. It should have told Ms X why it would not allow parallel parking in this case. Ms X specifically asked the Council to consider exceptional circumstances when it made its second decision. By not mentioning them at all, I can see why Ms X thought the Council did not consider them. The Council was at fault when it did not fully explain its decision.
  6. The evidence I have seen confirms the Council received Ms X’s son’s medical evidence. Internal correspondence shows officers were asked to consider it. The Council then confirmed to Ms X that officers did not consider her son’s condition was ‘severe’ enough to be an exceptional circumstance. Unfortunately, I have not seen any evidence of this consideration. I have not seen evidence of how officers assessed the medical evidence, or how the Council reached its decision. I am therefore unable to understand the Council’s decision. That was fault.
  7. Neither the Council’s policy, nor its terms and conditions, explain what an exceptional circumstance might be, what is meant by a ‘severe’ disability, or when a condition might meet that threshold. This placed a burden on officers to make determinations about the severity of medical conditions without adequate advice or guidance.
  8. The Council has confirmed it will review the exceptional circumstances clause from its crossover policy, which is welcome. It also suggested it is considering removing the exceptional circumstances clause.
  9. The Council is entitled to decide how it prioritises its parking rules and crossover policy. However, the Council has discretion in its decision-making and must remain open to consider circumstances where it would be unreasonable for its normal or preferred rules to apply.
  10. The Ombudsman considers that by removing a section of its policy which allows for exceptional circumstances to be considered, the Council would be fettering its discretion. This is not considered a suitable solution.

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Injustice

  1. I have considered whether the faults identified in the Council’s decision making caused Ms X an injustice.
  2. It was frustrating for Ms X when the Council did not properly explain its decision to her, and when it did not show it had properly considered her son’s disability. That caused distress.
  3. Ms X was put to added time and trouble because the Council did not properly explain its decision. She had to complain, but still did not receive a satisfactory explanation.

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Agreed action

  1. Within four weeks of my final decision, the Council agreed to:
    • Apologise to Ms X for not properly explaining its decision or how it considered her son’s disability.
    • Pay Ms X £200 to recognise the added time and trouble she was put to.
  2. Within eight weeks of my final decision, the Council agreed to:
    • Review the exceptional circumstances criteria of its crossover policy, taking advice from its blue badge department about how disabilities and their impact are properly considered.
    • Review the way its highways department records decisions and ensure the reasons for a decision are fully explained to applicants.
    • Reconsider Ms X’s crossover application. This should include a discussion with Ms X about the impact of her son’s disability, taking relevant expert advice, or advice from the blue badge department, if appropriate, and then fully explaining the decision to Ms X.

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Final decision

  1. I have completed my investigation. The Ombudsman found there was fault causing injustice when the Council failed to show it properly considered Ms X’s son’s disability and failed to properly explain its decision. The Council agreed to review its procedures and offer a remedy.

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Investigator's decision on behalf of the Ombudsman

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