Summary: Mr A complains the Council gave him poor advice about a dropped kerb application, and then refused his application and failed to refund him. This caused him to pay fees which were then lost because of poor advice from the Council. The Ombudsman finds fault with the Council for the advice it gave Mr A, and for the delay caused in remedying the injustice. The Council has now refunded Mr A his fees and has agreed to a financial payment in recognition of the distress and delay caused.

The complaint

1. Mr A complains the Council gave him wrong advice about his enquiry to have a dropped kerb outside his house.
2. Mr A complains that a Council officer told him he would not need planning permission and that his application would be approved. However, the Council declined the application due to it needing planning permission and did not refund his fee.
3. Mr A complains the wrong advice given to him by the Council was the reason for putting in the application, and the Council has wrongly decided to not refund the fee.

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The Ombudsman’s role and powers

4. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission
• a decision to refuse planning permission
• conditions placed on planning permission
• a planning enforcement notice.

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. 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

6. I considered Mr A’s complaint and information he provided. I also considered information provided by the Council. I considered comments from Mr A and the Council on a draft of my decision.

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What I found

Legislation and guidance

7. The law regulating vehicle crossings (such as dropped kerbs) over footways and pavements and verges is set out in Section 184 of the Highways Act 1980.
8. Dropped kerbs are lowered areas of pavement outside of a property that have been strengthened and made into a ramp shape to allow for a vehicle to cross the pavement and park onto the property.
9. An application can be made to the Council for a dropped kerb to allow for vehicle access. The Council’s website advises that applications for a dropped kerb should include confirmation about whether planning permission is needed, and if so, permission from the District Council is needed for this for this.

What happened

10. In August 2020, Mr A applied for planning permission for a dropped kerb outside of his property. He made this application to his local district Council.
11. The District Council refused the application for planning permission. Mr A says the District Council told him he must make the application for the dropped kerb to his local County Council.
12. Mr A sought advice from the Local County Council about whether a dropped kerb application could be made outside his property.
13. A highways officer from the County Council attended the site of the proposed drop kerb to inspect the area.
14. Mr A says the officer told him he would not need planning permission for the dropped kerb, and the Council was likely to grant the application.
15. Mr A says that on that basis, he paid the fee to apply for a dropped kerb outside of his property.
16. The Council refused Mr A’s permission for a dropped kerb on the basis the site needed planning permission.
17. The Council at first refused to refund Mr A his fee. It said it was the responsibility of the applicant to check if the site needed planning permission and that he filled in the application knowing planning permission had been refused.
18. Mr A complained to the Council that he had applied based on advice given to him by the Council officer.
19. In its complaint response the Council said the officer had acted in his position as a highways officer, and the Council could not overturn a planning decision made by the District Council.
20. Mr A remained unhappy with the complaint response and complained to the Ombudsman.

Analysis

21. I have reviewed documents from the Council about Mr A’s application for the dropped kerb.
22. At the time of the complaint the Council’s website advised that if planning permission was needed for the dropped kerb, confirmation of planning permission from the District Council should be included in the application.
23. I have also reviewed an account of the meeting from the Council officer. In the account of the visit, the site officer accepts there was a conversation between him and Mr A where the application for a dropped kerb was discussed.
24. The Council officer also accepts that during the site visit, he telephoned another colleague for advice on the planning permission needed. He was told it would not need planning permission.
25. Although the Council’s records do not show this information was given to Mr A, on balance, I am inclined to believe the Council told Mr A this information. I accept that Mr A applied for the dropped kerb based on the information he was given.
26. The Council has since refunded Mr A his full fee for the application. However, it delayed doing this until Mr A had complained to the Ombudsman. This was fault by the Council causing Mr A injustice.
27. During my investigation, the Council has accepted that members of staff were given the wrong information about whether Mr A needed planning permission. The Council also accepted there had been opportunities to address the maladministration sooner.
28. The Council has set out changes in its administration practice to ensure there is no further confusion with dropped kerb applications that need planning permission. This includes updating the Council website with clearer information and warnings for not to apply if planning permission has been refused. It has also asked staff to complete an another form which checks the road for which the dropped kerb is being applied for.
29. I am satisfied the Council has taken suitable action with the proposed service remedies to ensure there is no further maladministration.
30. However, I am of the view the injustice to Mr A could have been remedied sooner. Therefore, the Council should apologise to Mr A for the maladministration and delay which caused him to complain to the Ombudsman.

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Agreed action

31. Within 4 weeks of my final decision, the Council has agreed to

• Write to Mr A and apologise for the wrong advice he was given and for the delay in issuing the refund to him.
• Pay £100 to Mr A in recognition of the distress and effort taken to bring his complaint to the Ombudsman.

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Final decision

32. I have now completed my investigation. I find fault with the Council for the advice it gave Mr A about a dropped kerb application, and for delaying issuing a refund.

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Parts of the complaint that I did not investigate

33. Mr A also complained about the District Council’s decision to deny his application for planning permission. I have not investigated this part of the complaint as this decision is appealable to the planning inspectorate.
34. By law, we cannot normally investigate a complaint where there is or was a right of appeal to a government minister.

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Investigator's decision on behalf of the Ombudsman