The Ombudsman's final decision
Summary: We will not investigate this complaint about highway maintenance. This is because the courts are better placed to consider the complaint and it is unlikely we would find fault.
The complaint
Mr Y complained the Council incorrectly installed a metal gully, which protrudes from the remainder of the kerb by 25mm but has refused to repair the incorrect installation.
Mr Y’s vehicle was damaged when it hit the metal gully while driving, puncturing the tyre and damaging the wheel. Mr Y says the repairs to his car cost him £320, causing him inconvenience. He is also frustrated that the Council has said the metal gully is within its tolerance levels for defects, as in his view there is not a defect, but poor workmanship which should be corrected.
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 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 Ombudsman’s Assessment Code.
My assessment
The Council repaired a gully on the side of the highway in July 2021. In October 2022, Mr Y complained to the Council after his car tyre and wheel was hit when it hit the gully on the kerb. The Council responded at the start of November, explaining it had inspected the gully and found it was within its tolerance levels for defects as it was protruding from the kerb by 25mm. It said that its maximum tolerance level would be 50mm. It therefore denied fault. Mr Y then approached us.
Analysis Mr Y has told us he is seeking the reimbursement of the costs to repair his car after it hit the metal gully and was damaged as an outcome to our investigation.
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, such as to Mr Y’s car or personal injury. These are legal claims which may only be determined by insurers or the courts.
We do not have the power to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts and we will not investigate.
Further, Mr Y has complained the Council has failed to repair the gully. As the Highways Authority it is entitled to determine where it places its tolerance limits for defects. While Mr Y may disagree with the defect being referred to as such, it is the Council’s responsibility to determine whether remedial work is required.
In this case, it has carried out numerous inspections of the gully and while it is aware of the height difference between the gully and the kerb, it has satisfied itself that this is within tolerance levels.
It has therefore considered the problem and decided in its professional opinion as the Highways Authority that it does not require further work, having considered relevant criteria. It is therefore unlikely we would find fault as it has properly considered the issue and we will not investigate.
Investigator's decision on behalf of the Ombudsman