Summary: Mr X complains the Council has unreasonably refused his application for a dropped kerb. We find the Council was at fault for failing to consider whether there were any exceptional circumstances. The Council has agreed to reconsider Mr X application and exceptional circumstances and improve its services to prevent this fault from reoccurring.

The complaint

1. Mr X complains the Council has unreasonably refused his application for a dropped kerb. He says this has prevented him from being able to park near his house and charge his electric vehicle.

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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. 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

4. I have considered:
• The information provided by Mr X and in discussion with his representative;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
5. Mr X and the Council have had an opportunity to comment on my draft decision. I have considered their comments before making a final decision.

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What I found

The law and guidance

6. The Council’s policy document provides information for people applying to have a dropped kerb.
7. Section 3.3 of the document says that applicants must have a dimension of 5 metres in length by 2.5 metres in width from the nearest solid feature of the dwelling. The length must be perpendicular to the dwelling.
8. The policy goes on to say situations where driveways approach the highway at angles other than 90 degrees should be considered on a case by case basis.
9. However, the Council’s frequently asked questions online make it clear it will not accept dimensions rotated to run parallel to the dwelling because entering and exiting the drive from this position is deemed unsafe.

What happened

10. Mr X applied for a dropped kerb in early February. His reasons listed on the application were for the purposes of creating a parking space for an electric vehicle. The application was reviewed by the Council one week later. It concluded Mr X’s property did not meet the minimum dimensions required for approval and as such declined his application.
11. Mr X appealed the Council’s decision. He stated he did not consider it to be fair as it had not considered Mr X intended reason, to reduce emissions by buying an electric vehicle, or his disability.
12. The Council reviewed Mr X’s appeal in early April. It rejected the appeal on the basis Mr X did not have the 5 metre depth required at the front of his property. It directed him to contact the disabled parking bays team regarding his mobility issues.

Findings

13. The Council’s original decision not to grant a dropped kerb was one the Council was entitled to make. It considered the space available in line with its policies and procedures. There is no requirement for the Council to have considered carbon emissions by law or to encourage the use of electric vehicles.
14. When Mr X appealed the decision he provided the Council with further information for it to consider. He informed the Council that he was disabled. The Council has advised me that its policy is applied to all people consistently. The Equality Act 2010 states indirect discrimination occurs where an apparent neutral provision, criterion or practice puts a person sharing a protected characteristic at a particular disadvantage. Applying the same dropped kerb policy to all individuals equally, including disabled individuals, risks the Council causing indirect discrimination. The public sector equality duty requires public bodies to actively eliminate discrimination and advance equality of opportunity. We would expect councils to consider whether there are any exceptional circumstances to justify departing from the policy to prevent an injustice.
15. The Council’s decision not to consider exceptional circumstances when Mr X indicated he was disabled risked causing him an injustice. As such I would consider the Council’s decision to apply the same policy to all individuals equally to be fault.
16. Had the Council considered Mr X’s exceptional circumstances it would have had to have balanced these with the health and safety of pedestrians and other road users. I cannot say whether his application would have been successful or not, but there is an injustice that his exceptional circumstances were not considered.

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Agreed action

17. The Council has agreed, within four weeks of this final decision, to:
• Reconsider Mr X’s application and determine whether his exceptional circumstances mean discretion should be applied.
• Remind all staff that they must consider whether there are exceptional circumstances which means they should depart from the Council’s policy in certain cases to prevent an injustice.
18. The Council has agreed, within three months, review its policies to ensure the policy makes it clear people can cite exceptional circumstances and that the Council will consider these in line with its public sector equality duty.

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Final decision

19. I have completed my investigation. The Council is at fault for failing to consider exceptional circumstances when considering dropped kerb applications.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman