The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint about damage to a kerb running alongside a stream. This is because it is unlikely we could say the damage is the main or sole cause of any flooding Ms X fears and Ms X has an alternative remedy for the issue which it would be reasonable for her to use.
The complaint
The complainant, Ms X, complains the Council has failed to repair a kerb at the side of a stream. She says the Council’s delay has resulted in further damage to the bank of the steam and she is concerned the stream will flood.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) 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)
How I considered this complaint
I considered information provided by Ms X and the Ombudsman’s Assessment Code.
My assessment
The Council, as highway authority, is responsible for maintaining public highways. It confirms it is responsible for the kerb but it does not consider it a priority. Ms X is concerned the damage to the kerb will make flooding more likely but this is more likely the result of blockages/obstructions in the ditch through which the stream runs. The Council has confirmed such issues are the responsibility of the Environment Agency and if Ms X is concerned about the risk of flooding she should take the matter up with them.
If Ms X considers the Council has failed to comply with its duty to maintain the kerb, as part of the public highway, it would be reasonable for her to use the alternative remedy set out at Section 56 of the Highways Act 1980. This allows her to serve notice on the Council and, if it fails to act, she may apply to the court for an Order requiring it to carry out repairs.
Ms X also wants the Council to install a bollard to prevent further damage to the kerb by vans but it has not agreed to this and is under no obligation to do so. It is therefore unlikely we would find fault on the point.
Final decision
We will not investigate this complaint. This is because any flooding is more likely to result from blockages to the ditch/stream and this is a matter for the Environment Agency. If Ms X believes the Council has failed to comply with its duty to maintain the highway it would be reasonable for her to serve notice on the Council and take the matter to court.
Investigator's decision on behalf of the Ombudsman