The Ombudsman's final decision
Summary: We will not investigate this complaint about poor highway maintenance. This is because the courts are better placed to consider the issue and there is not enough evidence of fault in the repair work carried out to justify our investigation.
The complaint
Mr Y complained the Council had failed to properly maintain the highway outside his home, which he says he fell over and broke his arm. He also complained about the repair work to the highway, carried out following the incident, which he considers to be poor.
The incident has caused Mr Y upset and frustration, particularly at his injury.
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 or may decide not to continue with 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)) We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information Mr Y and the Council provided and the Ombudsman’s Assessment Code.
My assessment
In March 2022, Mr Y’s fell on the highway outside Mr Y’s home, which he says was in a poor state of repair. Mr Y complained to the Council, saying that it was responsible for his injuries, including a broken arm. The Council asked Mr Y to complete a claim form for it to consider the issue. It also considered Mr Y’s complaint about the condition of the kerb outside his home. Following a site visit, it agreed to complete repair work within the following five days to correct the issue.
Mr Y wrote to the Council again at the start of April, saying that the kerb outside his home was still out of line with the rest of the highway, despite the works taking place. The Council gave its final response in July, saying it had reinspected the site and denied any fault with the pavement repairs. Mr Y then approached us.
Analysis 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.
Mr Y’s injustice is the injury he has suffered and the emotional impact of this on him and his family, which he considers the Council responsible for. The issue of whether the Council is or is not responsible for this, is a question on liability.
We are not able to decide liability or award damages. Consequently, any claim for personal injury, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. It is therefore reasonable for Mr Y to pursue his claim through the courts. We will not investigate this complaint.
Mr Y is also unhappy with the repairs carried out on the kerb and highway outside his home. As the Highways Authority, the Council has a duty to ensure the highway, including the pavement, is “free from danger to all users who use the highway in the way normally to be expected of them”.
However, as the Council has considered the repair and is satisfied it has met this duty from its perspective as the Highways Authority, it is unlikely we would find fault in the repairs. Further as it considered relevant factors, including carrying out a further site visit to inspect the repair, it has properly consider the issue so there is not enough evidence of fault to justify our investigation. Consequently, we will not investigate this complaint.
Final decision
We will not investigate Mr Y’s complaint because the courts are better placed to consider the issue and there is not enough evidence of fault in the repair work carried out to justify our investigation.
Investigator's decision on behalf of the Ombudsman