The Ombudsman's final decision
Summary: We will not investigate this complaint about an accident on the public highway. This is because we cannot decide if the Council was negligent and responsible for the accident. Only insurers or the courts can do this.
The complaint
The complainant, Mr X, complained the Council damaged the pavement and his drive during work to the public highway. Mr X says this caused an accident involving his wheelchair. The accident led to damage to Mr X’s glasses, watch, clothes and personal injury. Mr X wants the Council to pay damages.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) 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 the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X’s complaint is the Council’s negligence led to his accident and it is therefore liable to pay damages. Claims for damages due to negligence are a matter for the Council’s insurers and, ultimately, for the courts.
The Council’s insurers have rejected Mr X’s claim and so he can now take the matter to court. I consider it would be reasonable for Mr X to do so. This is because the claims process is designed to be relatively simple and inexpensive. The Court can decide if the Council has been negligent and is liable for Mr X’s accident. The Court can decide what damages, if any, the Council should pay. The Ombudsman has no powers to make such decisions. It is reasonable for Mr X to pursue the matter in court.
Final decision
We will not investigate Mr X’s complaint because we cannot decide if the Council was negligent and responsible for his accident. It is reasonable for Mr X to take the matter to court.
Investigator's decision on behalf of the Ombudsman