The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about suffering a fall on an uneven paving stone. This is because it does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable to expect Mrs X to go to court directly or through insurers.
The complaint
In summary Mrs X says she fell over an uneven paving stone causing her to suffer a broken wrist and finger.
Mrs X says she has not complained to the Council as she could not face it. But she has sent a few emails and called the Council but failed to receive any response.
The Ombudsman’s role and powers
We provide a free service but must use public money carefully. We do not start an investigation if we decide 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. I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X’s complaint is mainly that the organisation has been negligent. Deciding about 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 an organisation has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Mrs X’s position to seek a remedy in the courts, directly or through insurers. I consider it is reasonable to expect Mrs X to do this so we will not investigate.
With respect to the lack of response to Mrs X’s contact we would not investigate this issue on its own if we are not looking at the main issue. This is because it is not a good use of public resources to investigate side issues in complaints if we are not considering the substantive matter.
Final decision
I will not investigate. This is because it is reasonable to expect Mrs X to go to court directly or through insurers.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman