Summary: We will not investigate this complaint about dropped kerbs because there is not enough evidence of fault to justify investigating and it is reasonable to expect Mrs Y to take the matter to court if she wishes to pursue it.

The complaint

1. Mrs Y complained the Council failed to repair a dropped kerb outside her property, which has led to water running from the footpath onto her property. She is also unhappy with the Council’s communication during the complaint handling process.

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The Ombudsman’s role and powers

2. 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, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. 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)
4. 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

5. I considered information Mrs Y provided and the Ombudsman’s Assessment Code.

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My assessment

6. Mrs Y is unhappy the Council has carried out work to one of the dropped kerbs outside her property to prevent water running from the footpath onto her land but has refused to carry out the same work on the other dropped kerb.
7. The Council’s duty is to reasonably maintain and repair the highway, including footpaths, so that it is free of danger to all users who use the highway in the way normally expected. It has a duty to make reasonable arrangements to get rid of water which has fallen directly onto a highway. However, it has no duty over water which has run onto the highway from surrounding land. 
8. As the Highways Authority for the area, the Council has considered the work Mrs Y has requested but has found that it is not an issue which would fall into the remit of its work to maintain the highway. It is satisfied with he works that took place previously and as the Highway Authority it is able to assess and decide whether the threshold for repair is met, as this is not set out in law and is open to interpretation.
9. However, as the Council is under no duty to ensure water does not run onto Mrs Y’s property, there is no requirement for it to carry out the work she has requested to alter the gradient of the dropped kerb and prevent water from running off the footpath. Consequently, there is not enough evidence of fault to justify investigating.
10. Further, if Mrs Y feels the Council has damaged her property when it did work to the dropped kerb, by its decision not to carry out the work or the contractor used failed to complete work to a sufficient standard, she would need to make a negligence claim for damages. We are not able to decide liability or award damages and as the courts can they are better placed to consider the issue. Where someone wishes to make a negligence claim, we would consider it reasonable to expect them to approach the courts about the matter.
11. As we are not investigating the substantive matter, it is not a good use of public resources to investigate how the Council dealt with Mrs Y’s complaint about the steepness of the dropped kerb. We will not investigate.

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Final decision

12. We will not investigate Mrs Y’s complaint because there is not enough evidence of fault to justify investigating and it is reasonable to expect Mrs Y to take the matter to court if she wishes to pursue it.

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Investigator's decision on behalf of the Ombudsman