Summary: Ms X complained about how the Council decided to refuse her application for a dropped kerb. The Council was at fault in how it communicated its decision to Ms X and how it publicised its approach to dropped kerbs where there is street furniture in the way. It was not at fault in how it decided to refuse Ms X’s application. The fault caused Ms X frustration and meant she had to go to time and trouble to pursue a complaint with the Council. The Council will make a symbolic payment to Ms X, confirm it has issued its new policy on dropped kerbs and update its website.

The complaint

1. Ms X complained about how the Council decided to refuse her application for a dropped kerb and about how it communicated that decision. She said the decision was unfair and the Council's contact with her was frustrating and misleading.

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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. 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)
4. 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

5. I have considered:
• all the information Ms X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
6. Ms X and the organisation 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

Relevant law and guidance

The Council's policy on dropped kerbs

7. The Council's policy, dating from 2006, states that decisions on whether to approve dropped kerb applications are based on professional judgement. The Council will consider the characteristics of the highway, traffic speed, volume, visibility, number of parked cars on the street already and number of existing dropped kerbs. It also notes driveways must be at least 4.75m where the person will park at right angles to their property.

The Council's website

8. The Council's website says successful dropped kerb applications will have:
• a width of 2.75m at the boundary of the property and the pavement;
• a width 4.5m at the kerb edge; and
• 4.75m between the back of the pavement to the front of their property.
9. The requirement for a 4.5m width at the kerb edge allows for three ‘dropped’ kerb stones and one sloping kerb stone on either side.

Good administrative practice

10. The Ombudsman's guidance ‘Principles of good administrative practice’ says councils should be open and accountable. This includes being open and clear about policies and procedures and ensuring information is clear, accurate and complete.

What happened

11. In early 2022 Ms X applied to the Council for a dropped kerb and paid the £95 fee. The kerb outside Ms X’s property has a telegraph pole and utility chamber on it, close to the kerb edge.
12. The Council visited her property and noted Ms X’s driveway measured as follows.
• 3.4m wide at the boundary between the property and the pavement.
• 2.4m wide at the kerb edge.
• 5.7m deep.
13. The Council refused Ms X’s application. It said her driveway did not have the required depth of 4.75m.
14. Ms X complained and told the Council her driveway was over 5m deep. The Council's stage one response apologised for the information it gave in its refusal. It said its inspector measured the distance at the property boundary and found it to be 2.4m.
15. Ms X replied to say the width of her property at the boundary with the pavement was 3.4m. The Council's stage two response said Ms X’s property did not have the required space at the kerb edge. It said it required a metre clearance from the telegraph pole and utility chamber.
16. Ms X remained unhappy and complained to the Ombudsman. I made enquiries of the Council and it told me:
• the policy from 2006 was out of date and a new one is due for approval in October 2022. The new policy will include information about how the Council considers obstructions such as street furniture and trees.
• it had been applying the requirement for clearance between dropped kerbs and street obstructions for many years. It typically requires 45cm from an obstruction but this depends on who owns it. Some organisations require different distances;
• residents need to be able to access and leave their property at right angles to the road. It therefore only considers the length of kerb directly in front a person’s property when calculating whether there is enough space to fit a dropped kerb. In Ms X’s case, when accounting for the telegraph pole and utility chamber it left a distance of 2.4m at the kerb edge; and
• Ms X could pay to have the telegraph pole moved and the utility chamber cover strengthened to allow a dropped kerb to be fitted, but this would likely be expensive.

Findings

17. The Council gave Ms X three reasons for rejecting her application for a dropped kerb. It accepted its first reason, that her driveway was not deep enough, was wrong. It then told Ms X the width of her drive at the boundary between her property and the pavement was too narrow when it was not. The Council's twice gave Ms X incorrect information about its rationale for refusing her application, this was fault. This caused Ms X frustration and meant she had to go to the time and trouble of pursuing a complaint with the Council to get the correct information.
18. Finally, the Council told Ms X the width at the kerb edge was too narrow when accounting for the clearance required around the telegraph pole and utility chamber. The Council explained its approach to clearance distances around street furniture in its enquiry response and I am satisfied it applied that approach properly to Ms X’s case. It was not at fault in how it decided to refuse Ms X’s application on the grounds the width at the kerb edge was too narrow.
19. However, the Council's approach to clearance distances around street furniture is not in its policy or on its website. This was fault and is contra to the Ombudsman's guidance on good administrative practice, which says that policy information should be clear, accurate and complete. The Council's policy should include the key criteria it uses to decide applications and note the circumstances under which an application may be refused. This is so staff who rely on the policy to make decisions apply the criteria consistently and fairly.
20. The Council's website is the only information available to residents on how the Council will consider their application. That information should accurately reflect the key content of the Council's policy so people can decide whether they want to make an application before paying the £95 fee. I cannot say whether, had the Council put information about clearance distances on its website, Ms X would have applied. Nonetheless, the Council's fault caused her frustration as she was not aware of its criteria until its stage two response. It also meant she experienced uncertainty about whether the Council's decision was properly made.

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Agreed action

21. Within one month of the date of my final decision, the Council will:
• apologise to Ms X for the frustration and uncertainty she experienced and the time and trouble she went to due to the faults identified in this decision; and
• pay her £100 in recognition of the injustice she experienced.
22. Within three months of the date of my final decision, the Council will:
• confirm to the Ombudsman it has issued its policy on dropped kerb applications;
• provide evidence it has carried out staff training on that policy; and
• update its website to reflect its new policy. This should include that the Council requires a clearance distance, typically 45cm, from obstructions like telephone poles. It should also include that applications for a dropped kerb may be refused if such a distance is not possible.

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Final decision

23. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman