The Ombudsman's final decision
Summary: We will not investigate Mrs B’s complaint that she tripped over a damaged paving stone which the Council had failed to repair. This is because it is reasonable for Mrs B to pursue her compensation claim by taking the Council to court.
The complaint
The complainant, who I will refer to as Mrs B, complains that she tripped over a damaged paving stone which the Council had failed to repair. Mrs B says she broke her nose and smashed her glasses. Mrs B complains the Council has repaired the damaged paving stones but has refused her claim for replacement glasses.
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 Act 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 B.
I considered the Ombudsman’s Assessment Code.
My assessment
We do not normally investigate complaints about personal injury. This is because such complaints are that an organisation has been negligent. Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings.
The Council is expected to routinely monitor the state of highways and carry out repairs where necessary. But, the level of maintenance, frequency of inspections, and threshold for repairs is not set out in law and is open to interpretation. Also, the Council has a statutory defence if it can show it could not reasonably have been expected to put right any defects before the incident happened.
Only a court can decide if the Council has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
So, I would usually expect someone in Mrs B’s position to seek a remedy in the courts. I do not consider there is any exceptional reason why Mrs B cannot do this. So, we will not investigate this complaint.
Final decision
We will not investigate Mrs B’s complaint because it is reasonable for her to take the Council to court.
Investigator's decision on behalf of the Ombudsman