Summary: Mr F complained the Council had failed to install a dropped kerb since his application was approved in 2021. We found fault which caused Mr F uncertainty and time and trouble. The Council has agreed to make a payment to him and review its processes.

The complaint

1. Mr F complains the Council has failed to install a dropped kerb since his application was approved in 2021. He says the delay means he has had to continually chase the Council, causing him significant time and trouble, his vehicle has been blocked in and he has not had the benefit of his spending on a driveway.

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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 an injustice, 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 will weigh up the available relevant evidence and base our findings on what we think 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(i), as amended)

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How I considered this complaint

5. I spoke to Mr F about his complaint and considered the information he sent and the Council’s response to my enquiries.
6. Mr F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Dropped kerbs/footway crossings

7. If residents wish to drive across the footway to gain access to park on their property, they are required under Section 184 of the Highways Act 1980 to have an authorised vehicle access crossing constructed by the local authority known as a footway crossing or dropped kerb.
8. Residents need to apply to the Council to build a dropped kerb. The Council as highway authority makes the final decision on whether to approve the application or not.
9. If the local authority approves the application, it should provide a quote to carry out the works. Once the parties agree a quote, the local authority should carry out the works “as soon as practicable”. This means as quickly as possible, considering the individual circumstances of the case.

The Council’s policy

10. The Council’s policy on footway crossing applications is available on its website. It sets out details about how to apply, possible costs, and likely timescales. The basic process is:
• The Council inspects the site once an application fee is paid. In 2021 the Council charged a £95 non-refundable application fee.
• After inspection, the Council would usually provide a quote within 20 working days, but this could be longer if street furniture or utility apparatus is involved.
• Quotes were valid for six months in 2021 (nine months in 2023).
• Installation is usually done within 12 weeks (16 weeks in 2023) of full payment of an accepted quote.
• Where utility plant (such as telegraph poles or chambers) or other street furniture requires relocation, removal, or adjustment completion could take considerably longer than 20 weeks.
11. Construction of a footway crossing will not start until full payment is received and any other requirements such as removing walls and fences and constructing a hardstanding/driveway etc., are completed.

Utility works

12. If the inspection identifies utility plant needing removal or relocation, the Council’s website advises residents not to start any construction of hardstanding or driveways or remove partition walls etc. before they have received a quotation for the works.
13. The utility company owning the equipment charges to inspect the site to be able to provide a detailed quote for their works.
14. The Council will therefore ask the resident to pay a survey fee (£268.94 in 2021).
15. The resident pays the Council and the Council submits an order to the utility company. The utility company sends an invoice to the Council along with an initial “budget estimate” of the costs of their works. It should do this within 30 days of the Council’s order.
16. The Council pays the invoice for the survey fee and the utility company will inspect the site and provide a detailed quote. It should do this within 30 days of payment.
17. If the resident agrees to the detailed quote, that is paid and the utility company carries out its works. Utility company inspection costs or works costs will not be refunded if already carried out.

What happened

18. Mr F applied for a footway crossing in November 2021. The Council inspected the site on 13 December 2021 and found there was a utility chamber in the footway.
19. Mr F paid the Council the survey fee of £268.94 on 26 February 2022. I have not seen evidence of the Council’s order with the utility company (“the Company”), but the Company sent the Council an invoice on 9 May 2022 for £301.48.
20. This was not paid as the Council had technical problems with its accounting software but the Council was unaware of this at the time. The Council’s case records say that on 11 May 2022 it was “awaiting full Company costs”.
21. In June 2022 the Council asked the Company to send its invoice. Mr F approached a local councillor due to the delay. The Council told the councillor on 7 July 2022 that “due to a change of system there was an IT issue which has now been fixed.” It was endeavouring to clear the backlog hence why it has taken this long to process the payment. It had asked the Company to allocate a planner to Mr F’s works.
22. The Company replied on 8 July with an invoice, but the survey fee was £301.18. The Company asked the Council to place a new order for a new survey fee of £361.47 as it said prices had gone up since April 2022. The budget estimate for the Company’s works was £2,683.25.
23. The Council queried the new survey fee and asked for new paperwork. There is evidence the Company sent the paperwork on 11 July 2022, but I have seen no evidence the Council raised a new order or paid the invoice.
24. On 7 September 2022, the Council chased the Company for its detailed quote. The Company replied that it had responded in July 2022.
25. I have seen no evidence of any further action until 30 November 2022 when the Council noted it was “awaiting full Company costs”.
26. Mr F complained to the Council about the delay on 22 December 2022.
27. The Council chased the Company. It said it had issued an order for a detailed estimate in February 2022 and was still awaiting this.
28. The Council replied to Mr F’s complaint on 18 January 223. It said it would refund his application fee, but on 24 January 2023 it advised it would not refund any fees as his application remained live. Mr F asked for his complaint to be escalated.
29. On 7 March 2023, the Council asked the Company for an invoice for the survey fee. It sent its final complaint response to Mr F the next day. It apologised for the delay. The Council said it was dealing with an unprecedented high volume of cases and internal resourcing issues. There had also been delayed responses from the Company and it was still awaiting the survey fee invoice
30. The Company sent a new invoice for the survey fee on 11 March 2023 but it was not paid until 22 May 2023. In response to my enquiries, the Council said it had had IT problems resulting in invoices not being paid.
31. The Company inspected the site on 8 June 2023 and issued a detailed quote the next day. It said it would be around 16 weeks for work to start once proof of payment, letter of acceptance and job packs were progressed. The Council sent this quote to Mr F on 15 June 2023.

My findings

32. Once Mr F paid the Council the survey fee on 26 February 2022, the Council should have placed an order with the Company to generate an invoice. I have seen no evidence of what happened here, but the invoice was not received until 9 May 2022. I have no evidence that this was caused by fault by the Council, it may have been delay by the Company.
33. But there was fault by the Council as the survey fee invoice was not paid in May 2022. On the evidence I have seen, the survey fee invoice was not paid until 22 May 2023.
34. This was mainly caused by the IT problems the Council had in 2022. But the case records also show an assumption by the Council that the survey fee had been paid and the detailed quote was awaited. In fact, the fee had not been paid so the Company was not progressing its inspection.
35. The Council missed several opportunities to clarify the situation:
• On 11 May 2022 – after the invoice had been received but had not been paid - the Council noted it was awaiting the detailed quote. But a proper review of the account may have revealed the invoice had not been paid.
• In July 2022, when the Company sent its budget estimate and said the survey fee was now £361.47. The Council could have reviewed the situation here and paid the invoice, but it took no further action until September 2022.
• After Mr F complained in December 2022, the Council contacted the Company but it again failed to clarify that the survey fee invoice had not yet been paid.
36. I find there was fault by the Council as it failed to pay the survey fee invoice and delayed chasing or clarifying the situation for a year. It therefore effectively lost control of the case.
37. If there had been no fault, Mr F would have paid the application fee and survey fee (which he has already done) and should have received a detailed quote from the Company by July 2022.
38. I understand there have been delays by the Company in providing quotes and carrying out works. So I cannot be sure when the detailed quote would have been provided. But, if the invoice had been paid in May 2022, I consider it likely that the detailed quote would have been received before March 2023.
39. The budget estimate was £2,683.25 but I cannot say what the detailed quote would have been. To determine now what a detailed quote would have cost in 2022, would require the Company’s cooperation, a matter over which the Council has no control, and could lead to further delay.
40. Nor can I be sure that the Company would have completed its works prior to March 2023.
41. This uncertainty is an injustice to Mr F, who has also been caused time and trouble by the delay in dealing with the case.
42. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our guidance on remedies says a symbolic, moderate payment up to £500 is appropriate for uncertainty and time and trouble caused by fault.
43. Mr F has asked the Ombudsman to recommend the works are done for free because of the delay. But this is not a suitable remedy. This is because if there had been no fault, Mr F would have had to pay for the works. His injustice is that he does not know whether the works could have been done in 2022 or at 2022 prices.

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Agreed action

44. Within a month of my final decision, the Council has agreed to:
45. Apologise to Mr F and pay him:
• £250 for the time and trouble caused by delay in dealing with his case
• £500 for the uncertainty caused by the failure to pay the Company’s invoice
46. Within three months of my final decision, the Council has agreed to:
• Review its process for checking progress of requests to utility companies. Its process should ensure orders are reviewed more frequently, the account is checked to be clear whether invoices have been paid and a single, clear record should be kept of contact with the utility company and all actions taken by the Council on the case.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman