The Ombudsman's final decision
Summary: Mr and Mrs B both complain the Council has not dealt properly with an application for a dropped kerb and the introduction of a controlled parking zone (CPZ). The Council is at fault because it didn’t properly advise Mr and Mrs B and failed to follow its complaints process. Mr and Mrs B lost the ability to apply for a dropped kerb under a previous policy. The Council has agreed to pay Mr and Mrs B £50 for their time and trouble and consider Mr and Mrs B’s vehicle crossover application under the previous policy in place when they approached the Council in early January 2020.
The complaint
The complainants, whom I shall refer to as Mr and Mrs B, complain the Council has not dealt properly with their application for a dropped kerb and the introduction of a CPZ because: they did not receive a consultation letter about the proposed CPZ; It has not left sufficient space on pavements after the introduction of the CPZ; It has not properly considered alternative arrangements proposed by them; It has provided inaccurate and inconsistent information about a dropped kerb opposite their property and why alternative arrangements are not possible; It has not considered Mrs B’s medical circumstances; and It has treated their application differently to another under the same circumstances, which has been granted.
Mr and Mrs B say they have been disadvantaged because they would have applied for a dropped kerb before the introduction of the CPZ, Mrs B has fallen in the street and suffered distress and they now have to pay to park on the road because they are unable to park on their property.
The Ombudsman’s role and powers
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) When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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)
How I considered this complaint
I spoke to Mr and Mrs B and considered the details of her complaint as well as the Council’s response. I reviewed documents sent by the Council and Mr and Mrs B.
Mr and Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
The Council’s Controlled Parking Zone Policy This policy explains how the Council will determine applications for vehicle crossovers. The criteria says it came into effect on 1 January 2020. However, I understand the Council delayed the introduction of the policy to 8 January.
Section 10 of the criteria says a vehicle crossover request will be refused if it would result in the removal or loss of a parking space within a Controlled Parking Zone (CPZ).
The Traffic Signs Regulations and General Directions (TSRGD) 2016 prescribe the designs and conditions of use for traffic signs, including road markings, traffic signals and pedestrian, cycle and equestrian crossings used on or near roads.
What happened In July 2019 the Council consulted Mr and Mrs B and other residents on a proposed CPZ for their road.
The consultation letter said that residents wishing to install a vehicle crossover should apply before the end of the consultation period as subsequent requests might be refused and application costs could increase.
The Council approved the CPZ.
The Council’s elected members decided to introduce the Front Garden Parking Criteria policy (hereafter referred to as the new policy). The policy says it is effective from 1 January 2020. However, the Council decided to delay the introduction of the policy until 8 January and accordingly it would assess applications received before this date under its existing policy (hereafter referred to as the old policy).
Mr and Mrs B’s neighbour applied for a vehicle crossover on 4 January and it was approved on 7 January.
In January 2020, after the CPZ was introduced, Mr B complained it had blocked him from parking on land which he and his wife owned adjacent to the highway. The Council did not uphold Mr B’s complaint. It said it could not escalate his complaint to stage two.
The CPZ became live in February 2020.
In May 2020, Mr and Mrs B applied for a dropped kerb. The Council refused their application. Mr and Mrs B appealed the Council’s decision. The Council did not uphold its decision on the basis of section 10 of its policy regarding the dropped kerb application.
In November 2020 Mrs B complained to the Council about the implementation of the CPZ, that the pavements were being obstructed, she was trying not to use public transport and she couldn’t pay to park in front of her house.
The Council did not uphold Mrs B’s complaint saying it had completed a site visit, the CPZ bays left the required amount of space, motorists causing obstructions could receive a penalty charge notice and referred to section 10 of its policy regarding the dropped kerb application. It did not allow Mrs B to escalate her complaint to stage two.
The Council wrote to Mr B in February 2021 accepting it didn’t address all the points he raised in March the previous year and provided a final complaint response.
The Council wrote to Mrs B in May 2021 after identifying it had made an error in her complaint handling and provided a final complaint response.
Analysis CPZ consultation letter I have seen the mailing list from the Council showing Mr and Mrs B’s address included.
I have seen responses from other residents in Mr and Mrs B’s road which shows they were aware of the CPZ consultation.
On the balance of probabilities, the Council did send a letter to Mr and Mrs B. The Council was not required to send CPZ consultation letters by recorded delivery. The Council is not responsible for delivery of the mail. This is not fault by the Council.
Implementation of CPZ Mrs B says there is not enough space to pass parked vehicles.
The Council has undertaken a site visit and found that, “parking bays have been installed so that vehicles park 2 wheels on the pavement and 2 wheels on the road, allowing a minimum of 1.5 metres from the back of the footpath to the start of the bay for pedestrian access – in accordance with TSRGD regulations.”
I have seen photographs of the CPZ bays and vehicles obstructing the pavements in numerous places. Mr and Mrs B have produced photographs from an unknown location showing the minimum distance in paragraph 26 has not been met. There is no evidence the CPZ bays do not comply with the TSRGD regulations near Mr and Mrs B’s house. This is not fault by the Council.
Alternative arrangements Mr and Mrs B have asked the Council to consider alternative arrangements for the CPZ parking bays. The Council has considered their suggestions and declined to implement them. These are professional decisions by the Council which the Ombudsman cannot consider. This is not fault by the Council.
Medical information Mr B says he sent an email to the Council in January 2020 referring to Mrs B’s health conditions. The Council says it has checked and did not receive this email from Mr B.
Mr B made reference to Mrs B being pregnant in his stage one complaint in late January 2020. He did not provide any information about Mrs B suffering medical conditions in this complaint.
Mr B says he referred to Mrs B’s medical condition related to COVID-19 when he escalated his complaint to stage 2 in early March. I have seen a copy of the email the Council received, which differs from the copy provided by Mr B in that it makes no reference to medical conditions.
The Council sent Mrs B a message towards the beginning of lockdown in March 2020 acknowledging that she was clinically extremely vulnerable. The Council says the text message received by Mrs B was a standard text message sent to all residents that were identified as might be requiring assistance, e.g. help with shopping etc and Mrs B received this as she was pregnant at the time.
Mrs B suffered a fall and attended hospital in March 2020. Mr B made reference to his wife’s fall in May 2020, after the Council had considered their dropped kerb application, but before the appeal and both final complaint responses. He did not provide any supporting evidence about this.
Mrs B did not provide any information about medical conditions when she made her complaint in November 2020.
The Council says, “No medical evidence has been provided to the Council to date, therefore, we are not able to provide comment on this. At no time was exceptional circumstances mentioned or any medical evidence provided, only that his wife was pregnant. Until...evidence is provided, Occupational Therapy will need to assess the information provided to confirm if it meets section 1.6 of the Front Garden Criteria.”
Section 1.6 of the new policy relates to exceptional circumstances. On the balance of probabilities, Mr and Mrs B did not provide information to the Council about Mrs B suffering medical conditions before their application and appeal were considered. This is not fault by the Council.
Mr and Mrs B have also provided further evidence relating to medical issues that has not been sent to the Council explaining the impact on Mrs B of the dropped kerb situation on her health. The Council could not consider this information which it did not have when it responded to Mr and Mrs B’s complaint. This is not fault by the Council.
Other dropped kerb applications Mr and Mrs B say other residents in their street have had CPZ parking bays removed to allow for the installation of dropped kerbs.
The new policy was introduced from 8th January 2020. One resident applied for a dropped kerb before this date and the other was the subject of a separate Ombudsman’s investigation.
Mrs B says she contacted the Council to enquire about the CPZ bays in front of her house on 7 January, before the introduction of the new policy. She also says Mr B contacted the Council on 13 January. Mr and Mrs B say the Council failed to tell them during a telephone conversation on 7 January that vehicle crossover applications received prior to 8 January would be considered under the old policy.
Mrs B has provided a handwritten note and a telephone call record. The note does not provide contemporaneous evidence of a call being made on 7 January. The call record shows a call made to the Council on 13 January for 16 minutes. There is no evidence as to the nature of the call.
Mr B did not refer to any telephone calls in his complaint or appeal about the dropped kerb application. Mrs B did not refer to the telephone calls in detail until after the Council’s final complaint response in May 2021.
Mr and Mrs B have also provided emails that indicate a telephone call was made to the Council on 7 and 13 January. Mr and Mrs B requested information from their telephone service provider to show call data for January 2020, but this was refused as data was only held for 12 months.
On the balance of probabilities, Mr and Mrs B did approach the Council about a dropped kerb on 7 January 2020. The outcome of the call should have been that they were advised that they had until 8 January to apply under the old policy.
An email from Mrs B to the Council in January 2020 indicates she was informed she could not apply for a dropped kerb after the introduction of the CPZ and she was advised to complain. This is fault by the Council. Mr and Mrs B lost the opportunity to apply for a dropped kerb under the old policy in similar circumstances to a neighbour.
Complaint handling Both Mr and Mrs B submitted separate complaints to the Council, in January 2020 and November 2020 respectively.
The Council agrees that it did not address all the points in Mr B’s complaint. It sent a final complaint response to Mr B in February 2021. If Mr B had received a complaint response earlier he would have been able to provide further evidence of the telephone call on 7 January, as his request could have been made within 12 months.
The Council agrees it did not address all the points in Mrs B’s complaint and did not properly respond to her request for her complaint to be reviewed. It sent a final complaint response to Mrs B in May 2021.
The Council did not follow its complaint process properly and identified this before the Ombudsman began an investigation. This is fault by the Council. Mr and Mrs B have incurred time and trouble in pursuing their complaint, because of the reasons outlined above. The Council has apologised to Mr and Mrs B for the delays to its complaint responses.
Agreed Action
To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision: Apologise to Mr and Mrs B; Pay Mr and Mrs B £50 in respect of time and trouble; Reconsider Mr and Mrs B’s dropped kerb application under the old policy in place on 7th January 2020, taking into account any supporting information provided to date regarding exceptional circumstances.
Final decision
I have found fault by the Council which caused injustice to Mr and Mrs B. I have now completed my investigation.
Investigator's decision on behalf of the Ombudsman