Summary: Mr X says the Council failed to consider his circumstances when refusing his application for a dropped kerb, relied on incorrect information and refused to consider his complaint. The Council failed to properly consider Mr X’s circumstances when refusing his application, included incorrect information in its decision letter and failed to process his appeal. An agreement to carry out a further appeal, send a reminder to officers, consider amending the Council’s guidance and refund of the application fee is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained the Council:
• failed to consider his circumstances when refusing his application for a dropped kerb;
• in reaching that decision, relied on him having access to rear garages when that is not the case.
2. Mr X says as a result he has to park some distance from his property and he is concerned about damage to his car.

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The Ombudsman’s role and powers

3. 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)
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. As part of the investigation, I have:
• considered the complaint and Mr X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr X and the organisation 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

The Council’s front garden parking criteria

7. The Council’s front garden parking criteria, which I will refer to as the guidance, says exceptional circumstances to the criteria may apply. It says this will only apply for those who are registered disabled and hold a blue mobility badge registered to the application address.
8. For the section relating to applications in a controlled parking zone (CPZ) the guidance says:
• 10.1 - the Council will refuse crossover requests where this will result in the removal or reduction of on street parking, including a designated parking bay in an existing CPZ, permit parking area or where a CPZ or other parking scheme has been formally approved.
• 10.2 - where a new CPZ or parking scheme is planned residents will be informed as part of the formal 21 day consultation period and will be invited to apply for a footway crossing within this period. Applications will continue to be processed up until the date stated on the CPZ consultation outcome letter when it is formally issued to affected properties and/or the public website is updated to reflect the outcome. Applications received after this time will be assessed in accordance with 10.1.
• 10.5 - an exception where possible to item 10.1 will apply to those who own an electric plug-in charge vehicle registered to the property requiring off street parking to enable vehicle charging.
9. The guidance says an applicant can appeal a decision within three months of a denial.

What happened

10. Mr X bought a property in 2023. When Mr X bought the property he did not know the Council had consulted on the introduction of a CPZ to include his road the previous year. Mr X did not know about that until he received a letter from the Council after he moved into the property telling him about the intention to carry out works to put the CPZ in place.
11. Mr X applied for a dropped kerb in September 2023. The Council refused that application. In the refusal letter the Council said a highway inspector had visited the address and had denied the application under section 10.1 of the guidance as Mr X already had an existing footway crossing to the rear garages. The Council went on to quote 10.1 and said in accordance with the criteria it had denied permission. The Council told Mr X he had a right to appeal within three months.
12. Mr X put in an appeal on 27 September. In that appeal Mr X raised concerns about whether the inspector had visited the right property as he did not have a footway to rear garages. Mr X explained he had purchased his property earlier that year and did not know about the CPZ.
13. The Council wrote to Mr X on 11 October to address his concerns about the inspector visiting the wrong property. The Council explained it had denied the application under section 10.1 of the guidance as it had received the application after it had issued the CPZ outcome letter. The Council confirmed the highways officer had visited Mr X’s property and viewed it from the kerb rather than the rear. The Council explained it had written to the previous owner of the property in 2022 to offer the option of having a crossing constructed at the time of the footway resurfacing. The Council explained it had applied the criteria set out in the guidance and could not make an exception or set a precedent by approving an application that did not meet the agreed criteria as that would be unfair to others. The Council explained the only exception was if Mr X had a valid blue badge or owned an electric vehicle registered to the address.
14. Mr X put in a complaint in November 2023. The Council told Mr X it could not deal with that complaint as he needed to appeal.

Analysis

15. Mr X says the Council failed to consider his circumstances when it refused his application for a dropped kerb. Mr X also says the Council relied on incorrect information when reaching that decision and then refused to consider a complaint.
16. The Council accepts there were failures in its consideration of Mr X’s application for a dropped kerb. The Council accepts when refusing the application it incorrectly referred to access to rear garages which was not relevant to its decision. Including incorrect information in the letter to Mr X telling him about the Council’s decision is fault. The Council also accepts it failed to deal with Mr X’s appeal properly as it did not follow its process and then failed to identify that when Mr X put in a complaint. That is also fault. The Council says though it does not believe the decision was affected by the fault as it considers Mr X does not qualify for a dropped kerb under the guidance. To reflect the failures though the Council offered to arrange a further appeal for Mr X and to refund the application fee he paid.
17. I welcome the Council’s willingness to admit when things have gone wrong. However, I am concerned about the Council’s decision-making in this case. The Council told Mr X he did not qualify for a dropped kerb based on what section 10.1 of the guidance says, which I refer to in paragraph 8. The Council says because Mr X applied for a dropped kerb after it had approved the CPZ in his road he cannot qualify for a dropped kerb. The Council also says Mr X does not qualify for exceptional circumstances because he does not have a blue mobility badge or an electric vehicle.
18. I am concerned about the Council’s approach here. First, I am concerned the guidance as it is currently written does not provide for any consideration of personal circumstances outside the narrow definition in the guidance of what constitutes exceptional circumstances. I would expect the Council, when considering an appeal, to consider whether the applicant’s circumstances constituted exceptional circumstances. To deny an application simply because the two examples of exceptional circumstances in the guidance are not satisfied would amount to fettering the Council’s discretion. Mr X has put forward arguments as to why he considers he should be allowed a dropped kerb, referring to the fact he bought the property after the Council consulted on the CPZ and therefore did not have an opportunity to apply for a dropped kerb by the deadline. I would have expected the Council to consider Mr X’s specific circumstances before reaching a decision. Failure to do that is fault.
19. It is not my role to say though whether the Council should have approved the application. That is properly a matter for the Council to decide after considering Mr X’s representations. I welcome the fact the Council has offered another appeal. However, I recommended officers considering the appeal are made aware of the need to ensure they consider the circumstances put forward by Mr X. I also recommended the Council remind officers dealing with dropped kerb appeals of the need to ensure each case is considered on its merits and that exceptional circumstances should not be limited to just the two options given in the guidance. I further recommended the Council consider amending its guidance to make clear when deciding whether exceptional circumstances apply it needs to consider the representations made by the applicant. The Council has agreed to my recommendations. I also welcome the Council’s offer to refund the application fee Mr X paid. I consider those actions sufficient to remedy the complaint.

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Agreed action

20. Within one month of my decision the Council should:
• apologise to Mr X for the uncertainty and frustration he experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• refund the application fee Mr X paid;
• carry out a further appeal while reminding officers of the need to consider Mr X’s circumstances and whether they qualify as exceptional circumstances. The Council should then write to Mr X to explain its decision;
• remind officers dealing with dropped kerb appeals of the need to ensure each case is considered on its merits and that exceptional circumstances should not be limited to just the two options given in the guidance.
21. Within two months of my decision the Council should consider amending its guidance on dropped kerbs to make clear when deciding whether exceptional circumstances apply it needs to consider the representations made by the applicant.

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Final decision

22. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman