The Ombudsman's final decision
Summary: We will not investigate Ms B’s complaint that she tripped on a dangerous pavement which the Council had failed to repair. This is because it is reasonable for Ms B to pursue her compensation claim by taking the Council to court.
The complaint
Ms B complains she tripped on a dangerous pavement which the Council had failed to repair. Ms B says the Council has wrongly refused her compensation claim for the injury she suffered.
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 Ms B.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms B says she suffered an injury because the Council failed to maintain a pavement it is responsible for. So, in effect, Ms B complains the Council has been negligent.
The Council’s insurers have considered Ms B’s claim for compensation but did not accept the Council was negligent. Ms B may now pursue her claim by taking the Council to court.
The role of the Ombudsman is to consider complaints of administrative fault. We cannot decide negligence claims. This is for the courts.
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. Also, unlike the Ombudsman, the court can order a party to pay damages.
I find it is reasonable for Ms B to take the Council to court. The fee for making a claim is relatively modest and Ms B may ask for the fee to be reimbursed if her claim is successful.
So, we will not investigate this complaint.
Final decision
We will not investigate Ms B’s complaint because it is reasonable for her to take the Council to court.
Investigator's decision on behalf of the Ombudsman