Summary: There were some faults in the Council’s consideration of Mrs P’s application for a dropped kerb. It did not keep a record of a visit. And it advised her to seek a review via a complaint, which the complaints team refused to consider. This will have caused Mrs P some frustration. The Council has agreed to apologise and make some service improvements. But it is unlikely that, if the Council had acted without fault, it would have come to a different decision.

The complaint

1. Mrs P complains the Council’s decision to refuse her application for a dropped kerb was unjust and flawed. Specifically that:
• it did not consider her medical condition;
• her drive is wide enough, given the width of her car; and
• other properties have crossings with smaller drives.

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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 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)
3. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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(1), as amended)

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How I considered this complaint

5. I considered evidence provided by Mrs P and the Council as well as relevant law, policy and guidance.
6. Mrs P and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legal and administrative background

Dropped kerbs (sometimes called vehicle crossovers)

7. If a motorist needs to drive across the pavement into a driveway or parking area, they need a dropped kerb. A dropped kerb or vehicle crossover is an area of lowered pavement and kerbstones. The property owner must get the local authority’s permission to install a dropped kerb.

Applying to install a dropped kerb

8. Local authorities have their own processes, fees and rules for approving dropped kerb applications. The Ombudsman expects local authorities to be clear and make people aware of any relevant conditions before they pay a fee which they may not get back.

The Council’s Domestic Vehicle Dropped Kerb Policy

9. The Council’s Policy says:
• when assessing an application, the Council would undertake a site inspection;
• it would only approve applications when a property’s forecourt met certain dimensional requirements. Relevant to this complaint is a requirement that a forecourt muse be at least 4.8 metres deep. The Policy says the Council could relax the rule to allow “an absolute minimum of 4.6 metres”, provided other criteria are met;
• “It is inevitable that applications will be received from applicants where the parking area, whilst large enough for their vehicle, does not meet with the minimum dimensional requirements. Such applications are likely to be refused as it must be recognised that property and car ownership is liable to change at any time”;
• the same dimensional rules applied to Blue Badge holders, but it had other measures it could consider for those applicants;
• appeals to decisions were through the Council’s complaints process.

What happened

10. The information below is a summary of relevant events, and does not include every everything that happened during this period.
11. After an operation that left her with limited mobility, Mrs P applied to the Council for a dropped kerb.
12. The Council refused the application. Its reason was the frontage of Mrs P’s property was too small. It noted that the fact there might be properties nearby with a dropped kerb did not affect its decision. It advised that, if Mrs P disagreed with the Council’s decision, her application could be reviewed, by making a complaint via the Council’s complaints procedure.
13. Mrs P complained, listing what she described as “exceptional circumstances” why the Council should reconsider her application. These included:
• that she had a car that was small enough to easily fit on her driveway;
• she had a serious medical condition that made walking long distances a struggle. And this was likely to affect her mobility for up to six months and possibly for the rest of her life;
• cars often parked in a way that affected her ability to park;
• the precedent of other frontages on her road with similar dimensions that did have dropped kerbs.
14. The Council’s complaints team responded to say it would not accept her complaint as it fell outside what it would consider, as the complaint was not about a service failure. It referred her to the Ombudsman.
15. Mrs P complained to the Ombudsman. We contacted the Council asking for some documents related to the decision, including a record of the site visit. The Council responded to advise one of its officers had recently visited the site. He had confirmed the driveway was too short, when compared to the Council’s policy.
16. In response to my draft decision, the Council advised an officer had visited before its decision, although the officer had not kept his record of this visit.

Analysis

17. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether you disagree with the decision the organisation made.
18. The Council’s Domestic Vehicle Dropped Kerb Policy says it will carry out a site inspection when assessing an application. The Council says it did follow its policy, and visited the site. But it did not keep a record. So I find fault that the Council cannot provide contemporaneous evidence of a site visit.
19. The Council’s Domestic Vehicle Dropped Kerb Policy directs applicants who want a challenge a decision to its complaints procedure. But when Mrs P did make a complaint, the Council’s team refused to accept it, as it said it was not covered by its Corporate Complaints and Compliments Policy and Procedure. It signposted Mrs P to the Ombudsman.
20. We accept it is for councils to decide their own policy on complaints, including any stipulations about what they would not deal with through a formal complaints procedure. But the information in the Council’s Domestic Vehicle Dropped Kerb Policy directs applicants to review its decision by complaining. That contradiction is fault. It also meant the Council did not consider Mrs P’s individual circumstances, as set out in her complaint.
21. The faults I have identified caused Mrs P some avoidable frustration. But since she complained to the Ombudsman, the Council visited, measured the site and confirmed its decision. It would have been better if it had also considered the individual circumstances Mrs P raised in her complaint, to consider if they raised any reasons to make an exception. But if it had done so, on the balance of probabilities, it is unlikely it would have arrived at a different decision, so limiting the injustice to Mrs P.

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Agreed action

22. The Council has agreed that:
1. Within a month of my final decision it will write to Mrs P apologising for the faults I have identified. 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.
2. Within two months of my final decision it will:
1. advise its officers they needed to keep the sheets they complete when carrying out at site visits;
2. remind all officers triaging complaints that the Council’s Domestic Vehicle Dropped Kerb Policy says appeals against decisions are through the complaints process.
23. The Council should provide us with evidence it has complied with the above actions.

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Decision

24. I find fault causing injustice. I have made recommendations. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman