The Ombudsman's final decision
Summary: We will not investigate Mrs B’s complaint that she tripped and suffered a serious injury due to the Council’s failure to repair a pavement defect. This is because it is reasonable for Mrs B to pursue her compensation claim at court.
The complaint
The complainant, who I will refer to as Mrs B, complains that her shoulder needed to be replaced after she tripped on a pavement defect. Mrs B says the incident happened because the Council failed to repair the defect. Mrs B complains the Council has wrongly refused her claim for compensation.
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 in effect these 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. In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
I cannot decide whether Mrs B’s injury was the result of Council negligence and have no powers to enforce an award of damages. 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 pursue her compensation claim at court.
Investigator's decision on behalf of the Ombudsman