Summary: Mr B complains about how the Council dealt with his application for a footway crossing (dropped kerb). The Council took too long to decide Mr B’s appeal and deal with his complaint about this. It cannot show that it has properly considered his daughter’s disability, and weighed this against the loss of planting if it were to approve the application. The Council has agreed to apologise to Mr B and reconsider his appeal.

The complaint

1. Mr B complains the Council did not properly consider his application for a dropped kerb so that he could park his car on his drive. Mr B also complains the Council took too long to deal with his appeal against his decision, his complaint about this and in general failed to communicate with him properly about this.
2. Mr B’s daughter is severely autistic and her routine is of paramount importance. He says that not being able to park in the same place when he comes home is not safe and causes his daughter and the family significant distress.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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 provided by Mr B and discussed the issues with him. I considered the information provided by the Council including its file documents. I also considered the Council policy set out below. Both parties had the opportunity to comment on a draft of this statement, and I have taken their comments into account before reaching a final decision.

The Council’s policy

6. The Council’s policy says it is committed to the protection of grassed and planted areas and that these remain a consideration for refusing permission to construct a dropped kerb. But that is considers applications on an individual basis in consultation with the Cabinet Member and the Ward Members.
7. The Policy also says that the Council is mindful of the needs of disabled people and its obligations to take their interests into account. It says it will attach due weight to the special needs of a disabled person, and that these might outweigh other considerations that would not normally support a refusal of an application for a dropped kerb crossing. The policy requires that the person holds a Blue Badge or meets the criteria of the Blue Badge scheme.
8. An applicant can appeal against the Council’s decision. The appeal is decided by an Operational Director in consultation with the Cabinet Member.

What happened

9. Mr B lives in a street of terraced houses, some of which have dropped kerbs and hardstanding parking area. In February 2020, Mr B applied to the Council to drop the kerb outside his house. He would need to cross a grass verge and either move or relocate a small shrub to do so.
10. The Council visited the site on 5 March and refused his application. It said that this was in line with its policy.
11. Mr B appealed against the Council’s decision. He told the Council that his daughter is profoundly autistic and has difficulty getting out of the car. The road is narrow and it is difficult to park. He has to stop in the street to get his daughter, who is 18, safely into the house. However, it is not safe because other drivers get impatient and try to pass dangerously. Mr B points out that the only plants lost would be a small shrub and some weeds. He offered to move the shrub to the adjacent grass verge. Mr B submitted the appeal in March 2020.
12. The Council’s officer completed a report for the Ward Members. This says:
• that Mr B wanted vehicle access as he has an autistic child and has difficulty getting her off the car from the road; and that parking difficulties result in health and safety concerns.
• The application will require the removal of shrubs to allow the dropped kerb.
• The officer recommends refusal of the application in line with the policy to protect planted areas.
• Members can choose not to support the officer’s recommendation if they wish to allow some flexibility in light of the health issues.
13. The report asks members to reply by 21 May 2021. It says Member’s views will be taken on board when the matter is considered by the Cabinet Member.
14. On 10 May, one of the Ward Members responded. He said that although the original decision was probably correct, the appeal is compelling, and having regard to the daughter’s disability, he supported Mr B’s appeal.
15. Mr B complained to the Council in July 2021 that he had not yet received a decision, or any acknowledgement. He said he had emailed the Council 11 times asking for its response.
16. The Council finally, gave Mr B its appeal decision on 15 October 2021. It said it had reviewed the appeal in line with its policy but the appeal was unsuccessful. It did not give Mr B any reasons why it was not successful or explain what it had taken into account in reaching its decision.
17. In November 2021, the Council responded to Mr B’s complaint. It said its officer had spoken to Mr B to explain why the application was refused. The Council however, apologised for the total lack of communication and that it did not meet its timescales in dealing with his appeal. The Council said it would take action to rectify this.
18. Mr B says the Council had not explained why it refused the application. He says it told him that its policy was to preserve greenery. He says it did not refer to his specific circumstances.
19. Mr B complained again to the Council. He asked whether the Council gave any consideration to his daughter’s autism. Mr B approached his MP with more details of how this caused them difficulties. In response, the Council agreed it could install a disabled parking bay despite. Mr B says that it took his several contacts for the Council to decide that it could install a disabled bay despite that Mr B does not have a Blue Badge. However, this would mean that double yellow lines would be needed opposite the bay. Mr B says this would make the parking situation in his street worse and is not a viable solution.
20. The Council has said that if it were to grant permission for dropped kerb, a large shrub will be lost. Mr B says the shrub that would be lost is much smaller than the measurements it has given, and one shrub would be retained. He is concerned it has misunderstood the site.

Analysis

21. There was fault by the Council causing an injustice to Mr B. It took from March 2020 to October 2021 to deal with his appeal, and from July 2021 to November 2021 to respond to his complaint about its lack of progress.
22. The Council has acknowledged that it took too long to deal with the appeal and says this was due to the workload of the particular officer. The Council has since reorganised how it deals with these applications and appeals.
23. The Council has also changed the personnel dealing with complaints and the team has weekly performance meetings to ensure that these are responded to in good time.
24. The Council told Mr B in both its initial decision to refuse his application, and its decision not to allow the appeal, that this was in line with its policy commitment to protected planted areas. However, its policy also allows the Council to depart from it. Although the Council later offered to facilitate a disabled parking bay, it has not evidenced how it considered Mr B’s particular circumstances and his disabled daughter's needs.
25. The Council also has not shown how the Operational Director and Cabinet Member considered these circumstances on appeal, or how they considered the Ward Member’s response in support of the appeal. This is fault by the Council.
26. We cannot say that the Council should have allowed the application. However, its shortcomings have left Mr B unsure about whether all his circumstances were properly considered when the Council decided the application and the appeal. He says that the Council has not understood his daughter’s needs or the extent of the planting that would be lost. In addition, the Council’s delays has caused him distress and frustration.

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Agreed action

27. The Council has agreed that it will within one month of the date of this decision show the Ombudsman it has:
• apologise to Mr B for the fault I have identified; and
• reconsidered his appeal, ensuring that it has properly understood his daughter’s needs and the site, and that it fully explains how it has taken all factors into account.

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Final decision

28. I have completed my investigation. There was fault by the Council causing Mr B injustice.

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Investigator's decision on behalf of the Ombudsman