The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint that the Council has not accepted liability for her personal injury and property damage after she tripped on an open inspection cover on the highway. This is because it is reasonable for Mrs X to take the Council to court, which is the body best positioned to decide her claim and provide the outcomes she seeks.
The complaint
Mrs X tripped over a partially open inspection cover on a highway footpath. She complains the Council has not accepted responsibility for her injuries, her upset and distress, and the damage caused to some of her property. She wants the Council to deal with her claim sympathetically and award her damages for her distress, inconvenience and the damaged property.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 Mrs X, and the Ombudsman’s Assessment Code.
My assessment
The allegation at the core of Mr X’s complaint is that it was Council negligence which meant the inspection cover was open, which in turn led to her fall and the resulting injury and property damage. The role of the Ombudsman is to consider complaints of administrative fault. We cannot decide liability in complaints about personal injury. This is for the Council’s insurers and ultimately for the courts. As the insurers have rejected Mrs X’s claim that the Council was liable, only the court can now decide if there was any Council negligence which caused her fall. The court can assess what damages, if any, the Council should pay. Also, unlike the Ombudsman, the court can issue an order to a party to pay damages.
Mrs X may pursue her claim and the outcomes she wants by taking the Council to court. It is reasonable for Mrs X to do so as the fees for making a claim are relatively modest and Mrs X may ask for the fee to be reimbursed if her claim succeeds. Also, legal representation for such claims is widely available.
Final decision
We will not investigate Mrs X’s complaint because it is reasonable for her to take the Council to court to pursue her claim and the outcomes she wants.
Investigator's decision on behalf of the Ombudsman