The Ombudsman's final decision
Summary: We will not investigate this complaint about the condition of a dropped kerb because there is insufficient evidence of fault by the Council.
The complaint
The complainant, whom I refer to as Mr X, complains the Council will not repair a dropped kerb. Mr X wants the Council to do repairs.
The Ombudsman’s role and powers
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 an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by Mr X and the Council. This includes the complaint correspondence and photographs of the dropped kerb. I also considered our Assessment Code and comments Mr X made in reply to a draft of this decision.
My assessment
People must get permission for a dropped kerb and pay for the work. They do not own the path over which the dropped kerb is built. The ownership and maintenance rests with the Council. The Council issues a two year guarantee which covers problems caused by poor construction of the dropped kerb. The guarantee does not cover wear and tear.
Mr X paid for a dropped kerb in 2019. The Council inspected the work and found it had been properly built. It issued the guarantee.
Mr X has contacted the Council several times to report that the dropped kerb is degrading and there is a small hole. Highway engineers and technicians have inspected the dropped kerb several times and decided not to do any work at the moment. Officers have decided there is no evidence of poor construction and the defect does not raise any safety issues or meet the threshold that means repairs are required. The Council told Mr X it will monitor the dropped kerb as part of routine inspections and will do repairs if needed. It also told Mr X that taking a core sample is unnecessary and could cause damage. The Council has inspected the dropped kerb since completing the complaints process in September and again found that no work is needed.
Mr X says it is not possible to assess the dropped kerb by only doing a visual inspection and not taking a core sample. He says the defect will degrade and deteriorate.
I will not investigate this complaint because there is insufficient evidence of fault by the Council. The Council responded appropriately by arranging for officers to inspect the dropped kerb several times. Their professional view is that the dropped kerb was properly constructed and the defect has been caused by wear and tear which does not, at the moment, require a repair. It is not fault for the Council to follow the professional judgement of highway officers. In addition, Mr X does not own the dropped kerb and it is for the Council to decide if it needs to do any work to the highway. The Council has reassured Mr X that it will do repairs if necessary.
We are not an appeal body or highway engineers. We cannot say that the professional judgment of officers is wrong or form a view about the condition of the dropped kerb. I appreciate Mr X does not think the way the Council assessed the condition of the dropped kerb is adequate but, again, it is not for us to question the professional opinion of highway officers. Officers explained why taking a sample is neither necessary nor appropriate. We can only consider if the Council followed the correct process in responding to Mr X’s reports. There is no suggestion of fault in the way it did this and no reason to start an investigation.
Final decision
We will not investigate this complaint because there is insufficient evidence of fault by the Council.
Investigator's decision on behalf of the Ombudsman