Summary: Mrs X complained about the way the Council dealt with her request for a dropped kerb. We found the Council’s delays and errors in considering Mrs X’s request for a second dropped kerb are fault. There was also fault in the way the Council responded to Mrs X’s complaint. These faults have caused Mrs X an injustice.

The complaint

1. The complainant, Mrs X complained about the way the Council has dealt with her request for a dropped kerb. She complained that having agreed her request and provided a quote for the works, the Council has since lost the application and refused to allow the dropped kerb.
2. Mrs X also complains the Council has wrongly sent correspondence regarding her dropped kerb application to her neighbour.

Back to top

The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)

Back to top

How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mrs X;
• Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Vehicle crossings

6. Dropped kerbs, also known as vehicle crossovers, provide a means of access to a private driveway from the public highway. 
7. Applications for dropped kerbs are made under Section 184(11) of the Highways Act 1980 which gives councils a wide discretion to decide whether to approve them. Councils should have their own policies and criteria for determining applications for dropped kerbs.  These may specify the length and width of the space required to park vehicles off-road, the width available for the dropped kerb itself and the distance to junctions. They may also limit eligibility depending on the presence of utilities and trees or where on-road parking is limited and in high demand.

The Council’s Vehicle Crossing Guidance

8. The Council’s guidance sets out the criteria it will use to assess applications. This includes the minimum dimensions for the private driveway, visibility requirements and road safety requirements.
9. The policy also says that in order to maintain as much on-street parking as possible, a second access in urban and sub-urban areas is highly likely to be refused unless significant safety or community benefit can be identified. In rural areas, a request will be assessed on its own merits with consideration given to existing and future on-street parking pressures.
10. In addition the policy considers trees and root protection and says applications requiring the removal of a healthy well established highway tree are likely to be refused. It also requires that a minimum root protection area be left undisturbed around trees to avoid damage to the tree root or rooting environment.

What happened here

11. Mrs X has two driveway entrances to her property, but only one has a dropped kerb allowing access to the highway. It is unclear exactly when Mrs X applied for a dropped kerb for the second entrance. However her X’s correspondence with the Council says her initial enquiry about a second dropped kerb was delayed due to the COVID 19 pandemic.
12. Mrs X contacted the Council in December 2022 to chase up her application and confirm a timeframe. An officer told Mrs X they would visit in late December 2022, but this visit was postponed.
13. The officer visited and took measurements on 7 March 2023. They then discussed the matter with Mrs X and provided a quotation for the works on 5 May 2023. The officer provided details of the cost for widening the existing crossover and constructing a new second crossover. In relation to the new crossover the engineer noted this would be narrower due to the proximity of a tree. Mrs X completed and returned the acceptance form the same day.
14. On 18 May 2023 Mrs X questioned why a paving slab and hole at the end of her drive had been fixed when the driveway was due to be extended. She asked for a date the works would start. The Council advised that the part of the drive that is not to be extended is the Council’s responsibility. It had been repaired as part of the Council’s maintenance. The Council confirmed that now the repair had been carried out it would raise an order for that driveway to be extended.
15. The Council also advised Mrs X it could not construct the dropped kerb for the second vehicle access because of the proximity of the tree. It advised the tree roots would cause damage to the dropped kerb and create a hazard at this location. The Council asked Mrs X to confirm whether she still wanted to widen the existing driveway.
16. I have not received a record of any further correspondence until Mrs X made a formal complaint to the Council on 7 March 2024. She complained the service she had received was extremely poor. Officers had not got back to her and she had had to chase to the point where she had given up. Mrs X said she had been given misinformation and letters addressed to her had been sent to her neighbour. Mrs X asked to see copies of the correspondence sent to her neighbour. She also questioned why she had been told she could not have a second driveway ‘because the law had changed’ when all of her neighbours had two driveways and her next door neighbour had been granted permission.
17. Mrs X chased the Council for a response on 15 April, 7 May 2024. She also contacted the Ombudsman in May 2024. We referred the complaint to the Council for it to respond under its complaint process. The Council advised us it did not have any correspondence from Mrs X regarding a dropped kerb. It would ask an engineer to contact Mrs X to advise on the process. The Council said there had been some confusion over correspondence with Mrs X’s neighbour who had applied for a dropped kerb.
18. Mrs X chased the Council again in early August 2024 as she had still not had a response to her complaint. Mrs X noted she had received an email on 3 July 2024 asking whether she wanted to go ahead with the part of the kerb being lowered without the complaint being responded to.
19. The Council responded and advised Mrs X that when it received her complaint via the Ombudsman it identified an application for a dropped kerb from Mrs X’s neighbour but could not find any correspondence from Mrs X about a dropped kerb application. The Council noted it had asked the highways department to contact Mrs X to discuss the process and criteria for a dropped kerb.
20. Mrs X was frustrated the Council could not find a record of her application. She provided a copy of the acceptance form she had returned in May 2023 when it was agreed to drop both kerbs. Mrs X asked for an explanation, with reference to policy and legislation, for why she could not now have the second kerb lowered.
21. The Council confirmed an engineer would send her a copy of the policy and confirm the Council’s position regarding a second dropped kerb in writing. It also told Mrs X that a neighbour had applied for a dropped kerb and a letter had been sent to them with the Council’s decision. The letter did not contain any personal data in relation to Mrs X so the Council did not consider there was a data breach.
22. In response to our enquiries the Council acknowledges the way the application was handled was far from ideal and that there was an error when it first determined the application.
23. The Council cannot explain why some of the records for Mrs X’s application are missing and suggests this is due to human error. It says that when it receives an application it carries out an assessment at the site and considers the request against the criteria in its policy. If the application is approved the Council will send a Construction of a Vehicle Access Crossing Form of Acceptance and quotation for the cost of the works.
24. In Mrs X’s case the Council says it had noted the location of the tree and had narrowed the dropped kerb to take account of this. However when Mrs X returned the acceptance form it identified it had made an error. The Council then took the view that the dropped kerb could not be constructed due to the proximity of the tree. It said the tree would be lost due to the construction of the access with a negative effect on the street scene. The Council considered that even if the tree could be saved the tree roots would cause damage to the dropped kerb and create a hazard.
25. The Council says the original offer was an error and should not have been made. It was retracted when the error came to light.
26. Correspondence relating to Mrs X’s application was sent to Mrs X’s neighbour and the Council apologises for his. It says this was a human error as Mrs X’s neighbour also applied for a dropped kerb around the same time the Council was considering Mrs X’s application. The Council says Mrs X’s neighbour’s application was also refused.
27. The Council says the delay in identifying correspondence and the confusion over Mrs X and her neighbour’s application led to a delay in dealing with the matter. The Council apologises for this.

Analysis

28. The Council’s record keeping in this instance is poor and amounts to fault. We would expect there to be a record of Mrs X’s application, how this was assessed and copies of all communication with her.
29. The documentation that is available shows there have been a number of delays and errors in considering Mrs X’s request for a second vehicle crossover. It is unclear exactly when Mrs X applied for a dropped kerb for the second entrance as the Council is unable to locate her application. It is clear however that there have been delays since at least December 2022.
30. Although an officer said they would visit to assess Mrs X’s application in December 2022, they did not visit Mrs X’s property until March 2023. It was then a further two months before the Council accepted the application and confirmed the cost for the works.
31. The approval of the second crossing was contrary to the Council’s vehicle crossover guidance. The Council acknowledges this was an error and the offer should not have been made. The assessing officer was clearly aware of the location of the tree as they referred to the need for a narrower vehicle crossover. But in the absence of any records of the visits it is unclear why it was not immediately identified that the presence of the tree would prevent the construction of a new crossover.
32. The Council identified its error within two weeks of sending out the acceptance form and quotation and explained it could not construct a second crossing due to the location of the tree. It is unclear what, if any, further correspondence there was between Mrs X and the Council on this issue prior to Mrs X’s complaint in March 2024.
33. The Council’s delays and error in initially approving and then retracting permission for the second cross over amount to fault and will have caused Mrs X inconvenience and frustration.
34. There was also fault in the way the Council responded to Mrs X’s complaints. There was a significant delay in responding as the Council could not trace Mrs X’s application for a dropped kerb. The Council then set out its understanding of Mrs X’s complaint and advised its policy would not normally support a second dropped kerb at a property. It said an officer would provide a copy of the Council’s complaints policy and confirm the Council’s position in writing. I have not received a copy of any further correspondence from the officer or a substantive response to Mrs X’s complaint.
35. The failure to respond to Mrs X’s complaint in line with the Council’s published complaints procedure is fault.

Back to top

Agreed action

36. The Council has agreed to apologise to Mrs X and pay her £100 in recognition of the inconvenience and frustration she has experienced as a result of the delays and errors in considering her drop kerb application.
37. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
38. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

Back to top

Final decision

39. The Council’s delays and errors in considering Mrs X’s request for a second vehicle crossover are fault. There was also fault in the way the Council responded to Mrs X’s complaint. These faults have caused Mrs X an injustice.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman