The Ombudsman's final decision
Summary: Mrs X complained the Council wrongly refused her application for a dropped kerb outside her property on two occasions. We found fault in how the Council considered Mrs X’s applications and communicated with her about the decision it made. The faults caused Mrs X frustration and uncertainty. The Council agreed to apologise to Mrs X to remedy the injustice caused.
The complaint
Mrs X complained the Council wrongly refused her application for a dropped kerb outside her property on two occasions. Mrs X said on the first occasion it relied on a controlled parking zone which had not yet been approved and in the second it stated shrub beds needed to be removed which was incorrect. Mrs X states this caused her frustration and inconvenience
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) We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended) 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 read the documents provided by Mrs X and discussed the complaint with her on the telephone.
I read the documents provided by the Council in response to my enquiries.
Mrs X 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 guidance This complaint considers two separate applications for a dropped kerb and front garden parking permission, one in 2020 and one in 2021. The Front Garden Parking Criteria are the Council’s guidelines which it considers when deciding to approve or deny applications for a dropped kerb.
Although the criteria was amended between the two applications, the points that are relevant to the complaint remained the same. The criteria sets out that: the dropped kerb width for one property must be 3.6 metres; approval of a dropped kerb would not normally be granted if it required the removal of highway shrubbery or amenity greens; it would refuse a request if approval meant the loss of a parking bay in an existing or approved Controlled Parking Zone (CPZ); and where a CPZ was planned, residents would be informed during a 21-day consultation period and invited to apply for a dropped kerb within that period. Applications received after the consultation period would be put on hold and considered once the CPZ had been designed or dismissed.
Controlled parking zone A CPZ is an area where parking is only allowed on certain parts of the road for a limited time and can include the use of parking permits. CPZs are used to manage traffic flow and parking issues in certain areas such as tourist hotspots or town centres.
What happened In January 2020 Mrs X applied for a dropped kerb so she could park her vehicle on the hardstanding on her front garden.
The Council stated it completed a survey and a gap size assessment. It recorded the gap as being approximately 1.8 metres. It decided to deny the application as it would result in the loss of public on street parking spaces in a CPZ and shrub beds would need to be removed if it was granted. The Council wrote to Mrs X informing her of its decision.
Mrs X contacted the Council and told it her street was not part of a CPZ.
The Council wrote to Mrs X again two weeks later and confirmed it denied her application on the loss of parking spaces in a CPZ and because it would require the ‘removal of street trees, highway shrubbery or amenity greens’.
Mrs X appealed against the Council’s decision to deny her application in February 2020 and reiterated her street was not part of a CPZ. Mrs X stated she contacted the Council three further times in March and once more in April.
The Council responded to Mrs X in April. It said the letters it sent to her in February incorrectly referenced the CPZs and confirmed that did not apply to her application. It said its decision to deny on the basis of the removal of street trees, highway shrubbery or amenity greens was correct and it upheld the decision. The Council apologised for the administrative errors in the correspondence.
Mrs X complained to the Council. Mrs X provided a photograph of the front of her property showing the tarmacked area with shrub beds either side. Mrs X stated the area did not have any amenity greens and therefore the dropped kerb could be approved.
The Council responded in April. It explained the tarmacked area at the front of Mrs X’s property was not wide enough for a crossing. It would require the removal of shrub beds, which was against the Council’s criteria.
Mrs X responded to the Council and stated she wished to appeal the decision and that a family member, who was disabled, was now living with her. Mrs X stated that due to personal reasons she did not progress this appeal any further.
In August 2020 the Council sent Mrs X a letter stating it was starting a formal consultation for a CPZ on her street in September 2020. It advised it would put on hold any applications for dropped kerbs it received after September 2020 until the CPZ was either designed or dismissed.
In February 2021 Mrs X applied again for a dropped kerb. The Council said it put a hold on considering the application until the CPZ had been designed or dismissed.
In May 2021 Mrs X contacted the Council and provided a video of the front of her property which now had a tarmacked area of 3.7 metres. The Council responded and stated it had not removed the shrub beds and therefore it knew her application would be refused. It stated it would replace the shrub beds.
Mrs X complained to the Council. She stated she had met all the criteria for a dropped kerb. She said the letter the Council sent in August 2020 about the CPZ did not include her street. Mrs X stated her application for a dropped kerb should be approved.
The Council responded to Mrs X’s complaint at stage 2 and stated: Mrs X’s application had been put on hold as outlined in the letter it sent to her in August 2020; it confirmed that Mrs X’s street was included in the CPZ and the information was in the letter it had sent to her; and the refusal of the February 2021 application was upheld as both the CPZ and the shrub bed criteria applied.
Dissatisfied with the Council’s response Mrs X complained to us in July 2021. She stated the Council had wrongly denied her applications. She also stated it was unethical of the Council to add shrub beds outside her property to reduce her dropped kerb area.
In July 2021 the Council approved the CPZ for Mrs X’s street. In August the Council stated it completed the survey for Mrs X’s application and denied it. The Council wrote to Mrs X and stated it was denied due to the loss of on street parking spaces in a CPZ.
Mrs X told me the tarmacked gap outside her property had always been 3.7 metres and had not altered in the time that she had lived there.
My findings
It is the role of the Ombudsman to review the process by which decisions are made, and, where we find fault in that decision-making process, to determine what injustice it caused. In this case the Council made decisions on two applications.
The first application On the first application the Council applied the incorrect criteria as it declined it on the basis of a CPZ. At that time there was not a CPZ in place or planned for Mrs X’s street. That was fault, however, I do not find it caused Mrs X an injustice. The Council had correctly applied the criteria related to the shrub bed, and therefore Mrs X’s application was denied anyway.
The Council’s communication with Mrs X was confusing. It initially denied her application on the basis of the CPZ, then on the basis of the CPZ and the ‘street trees, highway shrubbery or amenity greens’, and finally just on the basis that shrub beds would need to be removed. This was fault and caused Mrs X frustration and uncertainty. The Council has already apologised to Mrs X for this administrative error which is an appropriate remedy.
The second application On the second application the Council stated Mrs X’s application was on hold in line with the CPZ process. It then made a decision without completing a survey, or considering the application and while the application should have been on hold. It denied the application on the criteria that shrub beds would have to be removed. Failing to follow the correct process to make the decision was fault and caused Mrs X frustration and uncertainty as to whether the Council had properly considered her application.
When the Council did consider the application, it completed a survey and applied the criteria. It declined it on the basis of the loss of parking spaces in a CPZ. There was no fault in the way the Council made that decision which was in line with its procedures.
Mrs X stated the tarmacked area outside her property had always been 3.7 metres. The photograph Mrs X provided to the Council in April 2020, and the video she provided in May 2021, show the tarmacked area was extended over the shrub beds in between the two applications. There was no fault in the Council’s intent to replace the shrub beds.
Agreed action
Within one month of this decision the Council will write to Mrs X and apologise for the frustration and uncertainty caused to her by the identified faults.
Final decision
I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations to remedy that injustice.
Investigator's decision on behalf of the Ombudsman