Summary: Mr and Mrs X complain the Council did not deal with a footway crossing application properly. The Council fettered its discretion and did not consider the individual circumstances of the application. Mr and Mrs X remains uncertain whether their application would be successful. The Council should reconsider Mr and Mrs X’s footway crossing appeal on its individual merits, review its policy and provide guidance to staff.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs X, complain the Council did not deal with a footway crossing application properly.
2. Mr and Mrs X say they have been denied off road parking and suffered distress and uncertainty.

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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)
5. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.

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How I considered this complaint

6. I considered documents provided by Mr and Mrs X. I considered the Council’s response to initial enquiries and the supporting documents it provided.
7. Mr and Mrs X 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

Law, guidance and policies

The Council’s policy

8. Permission for a Footway Crossing will not be granted where any amenity feature (as outlined in 5.1) would require to be removed or reduced in size as this would have an unacceptable effect on the ability for water retention to reduce surface water flooding, particularly in flooding hotspots identified in any published borough S19 report and the Local Flood Risk Management Strategy.
9. Where applications do not conform to the criteria set out in this policy, applicants will be informed in writing and will be provided with details of the reasons for the refusal. There is no appeals procedure under the Highways Act but all applications are considered fairly in line with this policy.
10. If the application has been refused, the applicant can ask for the decision to be reviewed. When asking for a review, the applicant must clearly set out the reasons why they consider the criteria was not correctly applied. The review will be investigated by a Senior Highways Officer, who will respond within 40 working days of having received the request. All reviews will be considered based on their individual merits and also taking into consideration this policy.

What happened?

11. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
12. Mr and Mrs X applied to the Council for a footway crossing outside their home in April 2023.
13. The Council completed a site assessment a few days later.
14. The Council wrote to Mr and Mrs X refusing their footway crossing application in June 2023.
15. Mr and Mrs X asked for a review of the Council’s decision in August 2023.
16. The Council responded to the review request in early October 2023 refusing the application.

Analysis

17. The Council’s policy does not show any clear indication that all applications will be considered on their merits and the Council may disapply any of the requirements where there are good reasons for it to do so.
18. The Council’s policy does state that all reviews will be considered on their individual merits.
19. The Council’s covering letter to Mr and Mrs X when it first refused their application in June 2023, stated, “applications …. would be looked at on an individual basis in consultation with the Cabinet Member and local Ward Members and if the loss of verge would not have significant implications, then some flexibility may be allowed.”
20. When Mr and Mrs X asked for a review of the Council’s decision, they specifically requested that their application be considered on its individual merits and listed 10 points relating to their application.
21. The Council has provided no supporting information to show how it considered the application. It says the application was considered solely against the Council’s policy.
22. The Council did not consider the individual merits of Mr and Mrs X’s original application when it originally made a decision or when it reviewed that decision. In doing so, the Council fettered its discretion. This is fault by the Council. Mr and Mrs X remain uncertain whether their application would have been successful had it been considered on its individual merits.

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Agreed action

23. To remedy the outstanding injustice caused by the fault I have identified, the Council should take the following action within 4 weeks of my final decision:
• Apologise to Mr and Mrs X;
• Complete a further review of Mr and Mrs X’s application, providing reasoning as to how the decision has been made based on its individual merits;
• Review its policy on footway crossings to make clear that all applications will be considered on their merits and the Council may disapply any of the requirements where there are good reasons for it to do so; and
• Provide guidance to staff that reasoning for decisions about applications must be recorded and decision outcome letters must make this reasoning clear to applicants.
24. The Council should provide us with evidence it has complied with the above actions.

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Final decision

25. I have found fault by the Council, which caused injustice to Mr and Mrs X. I have now completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman