Summary: We will not investigate this complaint about damage caused to the complainant’s car by a broken kerb stone. This is because we cannot determine matters of alleged negligence and it is reasonable for the complainant to take her claim to court.

The complaint

1. The complainant, whom I refer to as Ms X, says a broken kerb stone damaged her car. Ms X wants the Council to pay for the damage and compensation for the inconvenience.

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The Ombudsman’s role and powers

2. 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 another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
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)

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How I considered this complaint

4. I considered information provided by Ms X. This includes the decision made by the Council’s insurers. I also considered our Assessment Code.

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My assessment

5. Ms X’s car hit loose kerbing in October; her car was damaged. Ms X spent about £300 on repairs and was without a car until it was repaired.
6. Ms X made a claim on the Council’s insurance. The Council rejected the claim because it said it had complied with its legal duties. It explained it had inspected the road in August 2022 and had not found any actionable defects and, before the incident, had not received any complaints. The Council said it is not responsible because it has a reasonable inspection regime.
7. Ms X disagrees with the response and says the Council should cover her losses. Ms X also says the road has not been fixed.
8. I will not investigate this complaint because we cannot determine if the Council was negligent in its maintenance of the road. The Council has explained that, due its inspection regime, it does not accept liability. If Ms X disputes that the Council had properly maintained the road she would need to take legal action. The courts have the expertise to determine if the Council should have taken additional action to prevent the incident and, if so, whether it is liable to pay damages. It is reasonable to expect Ms X to go to court because there is a relatively simple small claims procedure and because the courts are the appropriate body to determine the claim.
9. Ms X also says the Council has not fixed the kerb. I will not investigate this part of the complaint because she can apply for a court order (under The Highways Act s.56) requiring the highway authority to repair the road.

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Final decision

10. We will not investigate this complaint because there are legal remedies the complainant can use.

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Investigator's decision on behalf of the Ombudsman