Summary: The Council has apologised for failing to reply to Mr X’s application for a dropped kerb. It has refused his application because his property is too close to a junction. We will not consider this point as further investigation will not lead to a different outcome. And he can ask the court to decide whether the Council should repair the pavement outside his home.

The complaint

1. Mr X complains the Council:
• closed his application for a dropped kerb without informing him
• has given inconsistent reasons for its decisions; and
• refuses to repair the pavement outside his home
2. Mr X wants the Council to allow him to have a dropped kerb. And repair the pavement outside his house.

Back to top

The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

Back to top

How I considered this complaint

5. I considered information provided by Mr X and the Council.
6. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

7. On the Council’s application form for dropped kerbs, it states that it reserves the right to refuse an application.
8. Mr X applied for a dropped kerb. He also asked the Council to repair the pavement outside his house which he says is a trip hazard.
9. Mr X says Council workers arrived to repair the pavement. He says they told him there were too many paving slabs to repair and they would need to lay tarmac. And they told him there would be no problem with the dropped kerb.
10. After a few weeks Mr X contacted the Council for an update. He was told the application had been refused and the case closed.
11. Mr X complained and says the Council refused to allow the dropped kerb, despite other nearby properties having them. And it refuses to repair the pavement.
12. The Council says an officer visited the site in February 2021. He decided Mr X’s home is too close to a junction to allow a dropped kerb. Unfortunately, he did not tell Mr X. This is fault. However, the Council has apologised for this omission. I consider the apology a suitable remedy for this fault.
13. I understand Mr X believes this is inconsistent as other properties in similar locations nearby have dropped kerbs. However, the existence of other dropped kerbs in the area does not set a precedent and does not mean other applications will be approved if the Council believes it is unsafe to do so. We do not act as an appeal body, and we cannot intervene unless simply because a council makes a decision that someone disagrees with.
14. Mr X also complains Council workers originally told him they would lay tarmac to repair the pavement. But now it refuses to make the repairs.
15. The Council has inspected the pavement. It confirms none of the defects meet its minimum level for repair.
16. I appreciate Mr X wants the pavement repaired. But the Council’s decision that it does not need repairing is one of professional judgment and policy. There is not enough evidence of fault by the Council for us to be able to question the decision.
17. Also, under Section 41 of the Highways Act 1980, the Council has a duty to maintain the public highway. The definition of a highway includes the pavement running alongside a road and any footpaths for which the Council is responsible.
18. If Mr X believes the Council has failed in its duty to maintain the highway, he can serve a notice on the Council to carry out repairs. Should it fail to do so, Mr X can apply to the magistrates’ court for an order under Section 56 of the Highways Act 1980, requiring the Council to take action by a set date. The Council would be bound by any order made by the magistrates’ court. The Ombudsman has no powers to order the Council to carry out work to the public highway. It is therefore reasonable for Mr X to use the alternative remedy available. It can provide the outcome Mr X is looking for – an investigation by the Ombudsman cannot.

Back to top

Final decision

19. We will not investigate Mr X’s complaint because the Council has apologised for failing to tell him it had closed his application. This is a suitable remedy for this fault. The Council has decided to refuse his application for a dropped kerb because of the proximity to a junction. This is a matter of professional judgement and further investigation would not lead to a different outcome
20. Finally, it is reasonable for Mr X to seek a remedy in court for the alleged pavement defects.

Back to top

Investigator's decision on behalf of the Ombudsman