Summary: We found no evidence of fault in how the Council reached its decision to refuse Mrs X’s application for a dropped kerb. However, there was significant avoidable delay by the Council in dealing with Mrs X’s, unsuccessful, appeals against its refusal and her post decision correspondence. We found the Council’s apologies and its offer to refund Mrs X’s £100 application fee suitably addressed the frustration caused by its delays.

The complaint

1. Mrs X complained about the Council’s handling of her application for a dropped kerb because it:

• published inadequate information about how it assessed the impact of street trees in deciding applications;
• gave wrong information during a March 2020 telephone call;
• acted inconsistently in refusing her application because of a nearby tree while approving other dropped kerbs close to street trees; and
• failed to communicate effectively and without delay while dealing with her application and later appeals and complaint.

2. Mrs X said if correct and detailed information had been available she would not have wasted time and money applying for a dropped kerb and installing a driveway. And she would have avoided the resulting frustration and distress dealing with the Council and its delays and misinformation.
3. Mrs X wanted the Council to improve its published information about how it decides crossover applications near street trees. Mrs X also wanted compensation for the Council’s delays and misinformation and payment of her £6,600 costs of installing a driveway and hardstanding.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. Where we find fault, 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)
6. If we are satisfied with an organisation’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:

• considered Mrs X’s written complaint and supporting papers;
• talked to Mrs X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint
• shared, where possible, the Council’s comments and supporting papers with Mrs X; and
• shared a draft of this statement with Mrs X and the Council and considered any comments received before making a final decision.

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What I found

Background

8. Councils have powers to provide vehicle crossovers, also called a ‘dropped kerb’. A dropped kerb is lowered and strengthened pavement outside a property that allows people to access their driveway for off road parking.
9. The Council’s website includes information about ‘access to driveways: crossovers (dropped kerbs)’. The website gives links to both a dropped kerb application form and the Council’s 2018 ‘policy and guidelines’ about dropped kerbs (‘the Policy’). The website pages ask people to read the Policy before applying. The dropped kerb application form also includes, in red font, “please ensure you have read and understood the [Policy] before applying." A non-refundable £100 fee is payable when making an application.
10. The Policy includes information about ‘conflict with street trees or planted areas’. It says the Council’s tree officer will comment on applications that directly or indirectly affect street trees. And “the general presumption will be to refuse an application if there is a conflict with a street tree and/or its surrounding root system”. The Policy also says the tree officer will decide the minimum root protection area (‘RPA’) around a street tree. The RPA is used as the minimum acceptable distance between the tree and any works needed for the dropped kerb.
11. The Policy also says construction of the dropped kerb cannot start before the applicant has provided the necessary off-road parking area on their property. And it sets out a two-stage appeal procedure for applicants against a refusal or conditional approval of their application. (At both stages, the Council says it will respond within 40 days of receiving the appeal.) The Policy also deals with street furniture, for example, light columns and equipment owned by electricity, gas, water, and Internet companies. These companies often install pipes and cables under roads and pavements. Sometimes, street furniture and other equipment must be moved to accommodate a dropped kerb. Where this happens, the dropped kerb applicant must pay the costs, which can be substantial, in addition to the cost of the dropped kerb works.

What happened

12. Mrs X wanted a dropped kerb so she could park off road at her home. Mrs X did not have an existing driveway and a street tree was growing near her home. Having read about dropped kerbs on the Council’s website, Mrs X telephoned the Council in spring 2020 seeking more information. Mrs X said a Council officer told her there needed to be 3 metres between a dropped kerb and a street tree. Mrs X said she also questioned the need for off road parking before applying for a dropped kerb. Mrs X did not want to pay for a driveway and hardstanding and the Council then refuse permission for a dropped kerb. Mrs X said the Council officer told her she had to build the driveway first and there should be no problem with the application if there were 3 metres to the street tree.
13. Mrs X went ahead with constructing a driveway and hardstanding at her home. And, about three months after the Spring 2020 telephone call, Mrs X applied for a dropped kerb, paying the £100 application fee.
14. The Council considered Mrs X’s application and then wrote to her. The Council said its tree officer had identified the nearby street tree as needing a 4.3 metre RPA. In practice, this meant cutting down the tree to provide the dropped kerb but, being well established, the tree was not suitable for removal. So, the Council refused Mrs X’s application and told her about her appeal rights.
15. Mrs X appealed raising several points including about:

• the false information given to her during the Spring 2020 telephone call; and
• other dropped kerbs along the road within three metres of street trees.

16. The Council overlooked Mrs X’s appeal and, when she chased it for a response, explained the senior officer that needed to consider the appeal was on leave. Meanwhile, the Council wrote to Mrs X about her concerns saying:

• it could not comment on the Spring telephone call without knowing the name of the officer;
• the Policy did not include RPAs as it had to visit and assess each affected tree and decide its RPA; and
• off road parking was needed before construction of a dropped kerb and not before making an application.

The Council suggested the Spring telephone call had resulted in an unfortunate misunderstanding. The Council also updated its website to say, “do not carry out works to your property prior to receiving [a] letter of approval for the vehicle crossover”.

17. It took the Council nearly four months, and a complaint from Mrs X, to formally respond to the appeal. (Mrs X’s complaint included her concerns about its dropped kerb service and decision, and its delays.) The Council’s appeal response apologised for the delay but confirmed the refusal decision following a review by a senior tree officer. The Council also explained that other trees might be close to dropped kerbs because, for example:

• the dropped kerb was constructed before adoption of the Policy;
• the dropped kerb was constructed when the tree was younger and had a smaller RPA; or
• the tree was planted after construction of the dropped kerb.

The Council also told Mrs X about her further right to appeal.

18. In the correspondence that followed, Mrs X and the Council adopted differing positions. Mrs X said she wanted the Council to respond to her complaint. The Council asked Mrs X to go to stage two of its dropped kerb appeal procedure. And, if Mrs X remained dissatisfied after its stage two appeal response, it would then consider her complaint or refer her to the Ombudsman.
19. Mrs X, while continuing to seek a response to her complaint, made a stage two appeal against the Council’s dropped kerb decision.
20. About two months later, Mrs X made a further complaint to the Council about its failure to respond to both her original complaint and her stage two dropped kerb appeal.
21. Over the next six months, Mrs X continued to contact the Council. The Council, many of whose officers were working from home due to COVID-19 restrictions, could not find information Mrs X said she had posted to it. The Council then sent Mrs X its stage two appeal response about her dropped kerb application. The Council apologised for its delay and upheld the decision to refuse her dropped kerb application. The appeal response gave details of how the Council had assessed the street tree near Mrs X’s home and its relationship to her dropped kerb application. In recognition of its delay, it offered to refund Mrs X's £100 dropped kerb application fee. The Council also signposted Mrs X to the Ombudsman if she remained dissatisfied.
22. Mrs X did not accept the Council’s offer to refund her application fee and complained to the Ombudsman.

Consideration

Introduction

23. We are not an appeal body and so we do not take a second look at the Council’s decisions to decide if they were wrong. Our role is to consider whether the Council acted with fault in reaching its decision. This means we look at how the Council makes a decision. If we consider it followed the correct process, we cannot question the resulting decision.
24. As a publicly funded body we also must be careful how we use our limited resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision on whether a council has acted with fault. This means we do not try to answer every question or address each detailed point raised by a complainant about what a council did. So, we cannot always respond to complaints in the detail people might want. While I carefully considered all that Mrs X said, this statement does not, and did not need to, address every point raised in her complaint correspondence. The focus of the statement is the Council’s handling of Mrs X’s dropped kerb application and the issues set out at paragraph 1.

The Council’s published information

25. Mrs X said the Council published inadequate information about how it assessed the impact of street trees in deciding dropped kerb applications. Mrs X pointed to other council websites with more information, including the British Standard, BSI:5837(2012), which provided a method for calculating the RPA.
26. The Council said calculating the RPA for a tree was a specialist decision. It did not rely only on the British Standard in calculating the RPA. Rather, the Policy gave its tree officers the flexibility to consider the specific circumstances of each tree and its surroundings. It would then decide the RPA needed to protect the tree’s health. It referred to the British Standard when replying to appeals to aid applicant’s understanding of the decision. The Council considered that detailed information about RPAs could be misinterpreted, cause confusion, and possibly become contentious, if published.
27. Mrs X, having read the Council’s published information, knew the street tree near her home might affect her dropped kerb application. It is therefore understandable that Mrs X wanted information about how the Council would assess the tree. However, it is for the Council to decide the contents of its policies. That other councils might publish more and or different information about street trees does not necessarily mean the Council’s information is inadequate.
28. Here, the Policy lets people know the Council will normally refuse dropped kerb applications where they conflict with street trees and their RPAs. And, that a tree’s RPA, as assessed by the Council’s specialist tree officers, will be the “minimum” acceptable distance between the tree and dropped kerb works. The Policy provided sufficient information to alert applicants to the Council’s approach to dealing with street trees affected by dropped kerb proposals. I found no fault here.

The Spring 2020 telephone call

29. Mrs X said she telephoned the Council in Spring 2020 seeking more information about dropped kerbs. Not expecting to need to verify the telephone call, Mrs X kept no details of the call including its date or the Council officer’s name. However, Mrs X recalled being told there would be no problem if her dropped kerb was three metres from the trunk of the nearby street tree. Mrs X was also insistent the Council’s officer told her to build her driveway and hardstanding before applying for a dropped kerb.
30. The Council said it kept recordings of telephone calls to its contact centre for 90 days. The contact centre would transfer people asking about dropped kerbs to its ‘back-office team’, which did not record calls. The Council said the back-office team did not give advice and, anyway, there was little standard information it could give about dropped kerbs. The back office team would have taken the caller’s details and sent that information by email to the highways team responsible for dropped kerbs. It could not identify the officer Mrs X said she talked to. The Council also said it could not identify any circumstances in which an officer would have given telephone advice about a three-metre separation distance as every tree was different. It also confirmed that off road parking had to be in place before construction of a dropped kerb, not before applying for a dropped kerb, as set out in the Policy. The Council pointed out that it could not stop residents installing a driveway or hardstanding on their property.
31. The Spring 2020 telephone call was key to what went wrong for Mrs X. I had no reason to doubt what Mrs X recollected of her telephone call to the Council. The Council was equally clear its officers would not have told Mrs X to build her driveway before applying for a dropped kerb or referred to a three-metre tree separation distance. Without, for example, any recording of the call or a follow up confirmatory email or letter, there was no objective and independent information to verify the call and its contents. Further investigation now was unlikely to clarify or resolve the parties differing views. I could not therefore reach a reasoned and evidence based view about the contents of any telephone call. So, on balance, I could not find fault here.

Inconsistency

32. Mrs X said the Council acted inconsistently in refusing her dropped kerb application because of a nearby street tree when it had approved others closer to such trees. Mrs X provided four example addresses for dropped kerbs close to street trees.
33. The Council had explained why some street trees might be close to dropped kerbs (see paragraph 17). In responding to Mrs X’s Ombudsman complaint, it said it had approved dropped kerbs at three of the four addresses given by Mrs X before adoption of the Policy. And the tree near the fourth address was not in place when it approved the dropped kerb. The Council repeated that it considered the circumstances of each tree and not only its RPA as calculated using the British Standard.
34. The Council has explained why its decisions might appear inconsistent (see paragraphs 17 and 33). Those explanations were not without merit or unsustainable. The Policy, which the application form highlights (in red font) applicants should read and understand, says the Council’s tree officer will provide advice on affected street trees. The Policy also says any RPA will be the ‘minimum’ acceptable distance. So, the separation distance for any affected tree is not determined in line with the Policy without advice from the Council’s tree officers. I saw no evidence the Council did not properly apply the Policy, in considering ‘conflict with street trees’, to Mrs X’s dropped kerb application (see paragraph 14).

Communication and delay

35. Mrs X said the Council failed to communicate effectively and without delay while dealing with her dropped kerb application, her appeals and complaints.
36. The Council said appeals needing comments from specialist officers could take longer to resolve. And the time taken to respond to Mrs X’s stage two appeal was affected by its, unsuccessful, attempts to locate information she posted to its offices. Its offices had then been open only for essential purposes with most officers working from home due to COVID-19 restrictions. The Council said it did not have a general problem responding to appeals and correspondence. Several people had become involved with Mrs X’s correspondence and the time taken to deal with her case was an isolated incident. The Council said it had changed its procedures to increase monitoring of appeals. And it now scanned all post for circulation by email and set time limits for internal consultations on appeals.
37. On complaints handling, the Council said its stage one dropped kerb appeal response had addressed Mrs X’s complaint. That response also explained Mrs X should make a stage two appeal if she remained dissatisfied. It had repeated this information in responding to Mrs X’s second complaint.
38. The Council accepted there was avoidable delay, which it regretted, in dealing with Mrs X’s appeals and correspondence following its dropped kerb decision. While not affecting that substantive decision, the Council also accepted its delays might have inconvenienced Mrs X. It repeated its offer to refund Mrs X her £100 dropped kerb application fee to address any such inconvenience.
39. It took the Council about a month to decide Mrs X’s dropped kerb application. Mrs X received some irrelevant ‘auto generated’ emails from the Council during this month, which was probably annoying. But those emails had no substantive effect on her application and the Council had suitably addressed the matter by apologising to Mrs X. Overall, I found no evidence of fault in how the Council reached its decision on Mrs X’s dropped kerb application.
40. The Council has accepted there was avoidable delay in responding to both Mrs X’s stage one and stage two appeals. I agree. It took the Council about four months at stage one and eight months at stage two to respond against the Policy time target of 40 days. This was fault.
41. Mrs X also wanted a separate response to her complaints. However, the points Mrs X raised in her dropped kerb appeals and her complaints were similar and overlapped. The Council could decide that responding through its appeals procedure was a suitable way to address Mrs X points, and to also address its delays, and to then signpost her to the Ombudsman. I did not find the Council at fault in taking such an approach.
42. However, there was confusion in how the Council handled some of Mrs X’s correspondence after it made its dropped kerb decision. The evidence suggested that, in part, this happened as several Council officers became involved in the correspondence. The evidence also suggested a lack of clarity about which officer should be, and was, responsible for coordinating and responding to Mrs X’s contacts. COVID-19 restrictions were in place for much of the time. However, that did not excuse the Council from responding to residents’ correspondence. If COVID-19 restrictions affected normal response times, the Council should have explained the reasons for this to its residents. Instead, Mrs X was left on occasion having to chase the Council for progress and unclear about what was happening with her correspondence.
43. The lack of clarity handling some post decision contacts and the extensive avoidable delays in responding to appeals would have been frustrating for Mrs X. I therefore found injustice here.

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Agreed action

44. I have not found fault in how the Council reached its decision to refuse Mrs X’s dropped kerb application. However, there was fault causing injustice in the Council’s handling of Mrs X’s post decision appeals and complaints. The Council has already apologised to Mrs X for its delays. It also offered to refund Mrs X’s £100 dropped kerb application fee. I found the Council’s apologies and payment of £100 would proportionately, reasonably and appropriately address the injustice to Mrs X arising from the fault I identified. The Council agreed, within 30 working days of this statement, to pay Mrs X £100. The Council also agreed to provide evidence of that payment to the Ombudsman within 35 working days.

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Final decision

45. I completed my investigation, finding fault causing injustice, on the Council agreeing the recommendation at paragraph 44.

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Investigator's decision on behalf of the Ombudsman