Summary: We will not investigate this complaint about a dropped kerb because the courts are better placed to consider the complaint.

The complaint

1. Ms Y complained the Council has failed to replace a dropped kerb which Ms Y says is too high and has completed work to the footpath outside her home which she considers unsatisfactory and a potential trip hazard. She is also unhappy with the communication she has had with the Council about her complaint.
2. Ms Y says she has been upset at the response from the Council and she is unable to drive on and off her driveway due to the height of the existing dropped kerb, causing damage to her vehicle.

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The Ombudsman’s role and powers

3. We investigate 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 continue an investigation if we decide there is not enough evidence of fault to justify investigating and there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

6. I considered information Ms Y and the Council provided and the Ombudsman’s Assessment Code.

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My assessment

7. Ms Y reported a problem with the footpath and the height of the dropped kerb outside her home. Ms Y says her vehicle has been damaged as a result of the dropped kerb being at the incorrect height.
8. The Council carried out work to repair the highway but said the dropped kerb outside Ms Y’s property was not in disrepair as it was at the height used for dropped kerbs when the property was built, which is higher than that used now. The Council said if Ms Y wanted the dropped kerb to be lowered further, to the height currently used for dropped kerbs, she would need to pay for this service. Ms Y then complained about this and the standard of the work completed by the Council.
9. Ms Y says her vehicle has been damaged as a result of the height of the dropped kerb, which in her view should have been reduced at the Council’s cost.
10. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
11. We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs to her vehicle, which Ms Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. In this case, Ms Y’s complaint about the height of the kerb is intrinsically linked to the issue of whether the Council is liable for the cost of the repairs on Ms Y’s vehicle and whether the Council or Ms Y is responsible for the potential costs of lowering the kerb any further. As we cannot decide such claims, where the courts can, the courts are better placed to decide the complaint issues and we will not investigate.
12. Ms Y has further complained about the repair of the highway outside her home, which she considers to be unsatisfactory and a potential safety hazard. The Council has considered her complaint, including considering repairs which it has completed where it believes this is necessary following a site visit by a surveyor for the Council.
13. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached.
14. In this case, the Council has considered the issues Ms Y has raised and using its professional expertise has assessed this and acted in a way which it, as the highways authority, considers appropriate, taking into account relevant evidence such as that collected during the site visit. The Council has therefore made the decision properly, which while Ms Y may disagree with the decision, means there is not enough evidence of fault to justify our investigation.
15. As we are not considering the substantive issues in this complaint, it is not a good use of public funds to investigate how the Council dealt with Ms Y’s complaint and we will not investigate.

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Final decision

16. We will not investigate Ms Y’s complaint because the courts are better placed to consider the complaint.

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Investigator's decision on behalf of the Ombudsman