Summary: Mr and Mrs C complained the Council refused their application for a dropped kerb. They said this caused them inconvenience because there was limited road parking. The Council was at fault for assessing their application against a draft, unpublished policy and this caused them injustice. To remedy this injustice, the Council will reconsider their application based on the policy in place at the time.

The complaint

1. Mr and Mrs C complained the Council refused their application for a dropped kerb. They said this caused them inconvenience because there was limited road parking.

Back to top

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

Back to top

How I considered this complaint

4. I considered:
• Mr and Mrs C’s complaint and the information they provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
5. Mr and Mrs C and the Council had the opportunity to comment on a draft decision. I considered their comments before making my final decision.

Back to top

What I found

Legislation

6. Any person may ask the council for a dropped kerb. The Council may approve the request with or without modification or may propose alternative works or reject the request. The Council must consider the following when making its decision:
• the need to prevent damage to a footway or verge;
• the need to ensure, so far as practicable, safe access to and egress from premises; and
• the need to facilitate, so far as practicable, the passage of vehicular traffic in highways. (Highways Act 1980, part IX, s.184)
7. A council shall tell the person making the request of their decision. If it approves the work, with or without modification, it shall give the applicant a quotation of the cost of the works. (Highways Act 1980, part IX, s.184)

What happened

8. In January 2021, the Council drafted a new footway crossings (dropped kerb) policy. The Council advised this policy is yet to receive cabinet approval and therefore has not been published. One of the proposed changes to the policy was that a dropped kerb could not be installed where there was a grassy verge over three metres in length between the kerb and the applicant’s driveway.
9. However, the Council’s did not update its website with this new requirement. It stated successful dropped kerb applications would:
• Not endanger or obstruct traffic, such as at busy corners or near junctions
• Be constructed using a similar material to that in the surrounding area e.g. tarmac, slabs or block paving
• Meet the standard minimum width of 2.75m at the property boundary and 4.5m at kerb edge.
10. And, an application would be rejected if:
• There was less than 4.75m from the back of footway to front of the building.
• There was a healthy, well-established tree in close proximity, or one subject to a preservation order.
• The applicant did not have planning permission or permission from the property owner, if required.
11. Mr and Mrs C made a dropped kerb application in April 2021. They paid a non-refundable fee of £95.
12. Mr and Mrs C chased the Council for its decision. They were given the wrong details for the department they needed to contact and were passed between departments. By July 2021, the Council still had not decided their application and they made a complaint.
13. In July 2021, the Council told Mr and Mrs C their dropped kerb application was unsuccessful. It said it was not possible to lose the wide grass verge outside their property and if it permitted one footway crossing it would be difficult to turn down any neighbours who may want similar dropped kerbs. It advised installing a drop kerb would be a large scheme and it would need to consider the drainage requirements.
14. Mr and Mrs C challenged the Council’s decision. They said other properties had dropped kerbs similar to the one they had applied for, and gave examples. They advised there was limited road parking where they lived, and they wanted to change their car to electric and would need a charging point.
15. The Council told Mr and Mrs C it refused their application in line with its policy. It said it had provided Mr and Mrs C with the relevant parts of this policy. It explained one of the examples they provided was approved in April 2019 before its new policy came into force in January 2021.

Analysis

16. The criteria the Council used to assess Mr and Mrs C’s dropped kerb application was different from that listed on the Council’s website, this was fault. Mr and Mrs C made and paid for the application on the basis they met the published criteria. The new draft policy had not been approved or published so there was no way for them to know they did not meet the new criteria against which the Council was assessing their application.
17. The Council made its decision about Mr and Mrs C’s dropped kerb application based on a draft policy that had not been approved or published, this was fault. The Council should have assessed Mr and Mrs C’s application based on the approved policy in place at the time and published on its website.
18. The Council’s fault raised Mr and Mrs C’s expectations of a positive result. It also put them to time and trouble chasing the Council for its decision on their application and then challenging its rational from rejecting it.

Back to top

Agreed action

19. Within one month of the final decision, the Council will:
• Reconsider Mr and Mrs C’s dropped kerb application based on the approved policy in place and published on its website at the time they made their application. If the application is successful, the Council should base its quote for the work on May 2021 prices.
• Pay Mr and Mrs C £100 for time and trouble.
• Until the Council approves and publishes a new policy for dropped kerbs, it should make all decisions in line with the dropped kerb policy currently approved and on its website.
• Advertise on their public domain for six months the following: “Birmingham City Council is inviting all rejected grass verged footway crossing applications (dated between 01 January 2021 to 14 March 2022) to request reconsideration of their application under the criteria advertised at the time.” It will also advise those who had a grass verged footway crossing application rejected, to request a refund of their application fee.
20. The Council should provide the Ombudsman with evidence it has completed these actions

Back to top

Final decision

21. I have completed my investigation and uphold Mr and Mrs C’s complaint. Mr and Mrs C’s was caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

Back to top

Investigator's decision on behalf of the Ombudsman