The Ombudsman's final decision
Summary: Ms X complained about the Council’s decision to refuse her vehicle crossover application and about pre-application advice she received. We did not find fault with how the Council decided Ms X’s application. However, we did find fault by the Council in the advice it gave Ms X and in how it handled her complaints. The Council agreed to refund Ms X the vehicle crossover application fee and send her a letter of apology.
The complaint
Ms X complained about the Council’s decision to refuse her application for a vehicle crossover and about pre-application advice she received from the Council. Ms X stated the Council did not treat her equitably and she has lost her application fee because of the poor advice she received. She feels the Council may have discriminated against her because of her race.
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 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) We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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.
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)
How I considered this complaint
As part of my investigation I have: Discussed the complaint with Ms X and considered information she provided; Made enquiries of the Council and considered its response; Considered the relevant Council policy; and Set out my initial thoughts on the complaint in a draft decision statement and invited Ms X and the Council to comment.
What I found
The policy states vehicle crossing applications will be refused (unless exceptional circumstances apply) if they will create a road safety hazard. It identifies being close to a road junction as something likely to create a road safety hazard.
The Council’s vehicle crossover application form terms and conditions.
This states that applications for a vehicle crossover within 10m of a junction or on a bend will be refused.
What happened Ms X lives in a property situated within 10m of a junction.
In January 2023 Ms X decided to apply for a vehicle crossover (hereafter referred to as a crossover). However, she was concerned her application might not be approved because her home is near a junction.
On 16 January she spoke with a council officer about her concerns. The officer asked Ms X if there were other crossovers in the road where she lives. Ms X said yes. Ms X states the officer told her this meant there were no reasons to refuse her application.
On 27 January Ms X made submitted her crossover application. She paid a fee of £210.
On 3 February the Council wrote to Ms X refusing her application because her home is within 10m of a junction and so, a crossover would be a road safety hazard. It said the presence of other crossovers in Ms X’s road did not provide grounds for it to approve her application.
On 15 February Ms X call the Council and spoke with the officer who previously advised her. She states the officer repeated the advice she gave her in January.
On 27 February Ms X complained to the Council about its decision. She said the reason for refusing her application contradicts the advice she received. She also said: there are crossovers near junctions in her road and she asked when the Council implemented its current policy; neighbours in her road with crossovers near a junction are white English. She feels the Council has discriminated against her because of her race.
she needs to park her car in front of her home because of car theft in the area. However, this restricts traffic flow and makes it difficult for her neighbours to enter and exit their homes. Approving her application would prevent these issues; Her neighbours support her application; Her father is disabled and a crossover would make it easier for him to visit her home.
On 8 March the Council replied. It said Ms X’s application does not meet the criteria in its policy and so it cannot be approved. It said the officer she spoke with did not recall speaking to her but says she normally says the presence of other crossovers in a road is usually a good sign for an application. However, she would not say an application would be approved as she is not the decision maker. The Council’s response did not address the other matters raised in Ms X’s complaint.
On 2 May Ms X escalated her complaint to stage 2. She reiterated her earlier grounds of complaint. She also asked why a council officer did not visit her home before deciding her application.
On 9 May the Council replied. It said Ms X had signed the terms and conditions when making her application and so was aware applications within 10m of a junction would be refused. Therefore, it said it upheld the decision and considered all parts of her complaint were addressed in the previous response.
Ms X remained unhappy and complained to the Ombudsman.
We made enquiries of the Council. In its response to us it said: There are no recordings of the calls between Ms X and the officer who advised her on her application.
The officer who spoke with her does not recall the conversations but says she would never advise that an application would be approved. She would not advise an officer will visit the application property as this is a decision made by its highways department.
Applicants must sign the terms and conditions before submitting their application and so Ms X was aware applications within 10m of a junction are usually refused.
Officers carried out a site visit on 2 February and again on 1 March in response to her complaint. It provided photographs from the 1 March visit.
Officers decide on a case-by-case basis if there are exceptional circumstances that warrant it departing from its policy. It said that if a person had severe mobility issues or disability this may be grounds to depart from its policy. However, Ms X’s father does not live at her address and so this could not be considered in her case.
The other issues raised by Ms X did not amount to exceptional circumstances.
The officer who visited Ms X’s home has not had any contact with Ms X and so would not know her race. Personal details of the applicant are not provided to officers and so they would not have known Ms X’s name.
There is no evidence of discrimination. The officer has followed the correct process when deciding Ms X’s application.
It cannot provide details about other crossovers in the road where Ms X’s lives. However, there may have been different policies in place when they were approved. Its policy is clear that applications may be refused even if others in the area have been approved.
Finding
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 how the Council made its decision. If we consider it made its decision correctly, we cannot question whether the decision was right or wrong, regardless of whether the complainant disagrees with the decision the Council made.
I have considered how the Council made its decision. The Council’s terms and conditions for crossover applications state applications will not be approved if the crossover would be within 10m of a junction. All parties agree Ms X’s home is within 10m of a junction and so, its decision accords with its policy.
Ms X says the Council did not complete a site visit before it decided on her application in February. The Council says a visit took place but has not provided any supporting evidence. Therefore, I cannot be sure the visit took place. However, I have no such doubt that a site visit took place in March and so I am satisfied the Council’s decision to uphold its original decision has been informed by knowledge of the application site.
Ms X says there are exceptional circumstances in her case and the Council should depart from its policy and approve her application. The Council did not address this matter as part of its stage one or two complaint response. This is fault as it should have done so. As a result, Ms X has been put to avoidable time and trouble in pursuing this matter.
In response to our enquiries the Council explained that it does not consider there are exceptional circumstances in Ms X’s case and so it is not persuaded to change its decision. This is a decision the Council is entitled to take. I am satisfied the Council has now considered this matter.
Ms X says she would not have applied save for the advice given to her by a council officer in January 2023. Ms X and the Council have differing accounts of the conversation. There is no recording of the call to clarify what was said. Ms X made the call to specifically clarify her concerns about her home being near a junction. I do not see she would have continued to make an application if she had not received advice that it would be worthwhile to do so. Therefore, on the balance of probabilities, I consider Ms X received unclear advice. This is fault which has caused Ms X an injustice because she paid for an application she would not otherwise have made.
I note the Council’s comments that Ms X was aware of the criteria regardless of the advice she received in the call, because she signed the terms and conditions. I agree that she did so. However, as the purpose of Ms X’s call was to clarify this matter it is understandable that she would have continued with an application because of the advice she received.
Ms X has explained that she feels the Council has discriminated against her because of her race. I have seen no evidence of this. The Council’s decision on her application was in keeping with its policy. It also says that officers who made the decision did not know her personal details and so this cannot have been a factor when it considered her application.
Agreed action
I have found evidence of fault by the Council. To address the injustice caused to Ms X the Council should take the following action: Refund Ms X’s application fee of £210.
Send her written apology for not providing a full answer to her stage one and stage two complaints.
The Council should take the above action within one month of my final decision.
Final decision
The Council has agreed our recommendation. I have completed my investigation and closed the complaint.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman