Summary: The Ombudsman will not investigate Miss X’s complaint about an injury suffered by her son. This is because the complaint concerns a claim for personal injury caused by negligence. It is reasonable for Miss X to seek a remedy in the courts.

The complaint

1. The complainant, whom I shall call Miss X, complains her son suffered an injury while playing in a park the Council maintains. Miss X wants the Council to pay compensation.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

3. 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)

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How I considered this complaint

4. I considered Miss X’s complaint to the Ombudsman and the information she provided. I also gave Miss X the opportunity to comment on a draft statement before reaching a final decision on her complaint.

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What I found

5. Miss X complains her son fell over in a council-maintained park when he “tripped over a faulty and poorly maintained tear in the surface”. Miss X’s son injured his arm and had to attend hospital. He was forced to miss time at school and Miss X says she had to take time off work. Miss X says the Council failed in its duty of care and wants it to pay compensation.
6. The Council has responded to Miss X via the County Council – which handles claims for damages on behalf of South Tyneside Council. It has provided details of when the park was inspected and has refused Miss X’s claim for compensation. It has suggested Miss X take legal advice.
7. Miss X’s complaint is a claim the Council has been negligent in its maintenance of the park, and that this led to her son’s injury. Negligence is a legal matter and can only be determined by the courts. The Ombudsman cannot decide liability in personal injury cases.
8. Now the Council has refused Miss X’s claim she has the right to take legal action against the Council. As this right exists, the law says we should not investigate unless we do not consider it reasonable for Miss X to resort to court action.
9. I see no reason Miss X should not use the legal remedy available to her. The court procedure is open to anyone to make their own legal claim. Alternatively, Miss X might consider engaging a ‘no win, no fee’ solicitor, or other legal representative, to assist with her claim.
10. Only the courts can decide if the Council has been negligent and is responsible for the injuries at the heart of Miss X’s complaint. The Court can decide what damages, if any, the Council should pay. These are not decisions the Ombudsman can take and so we will not investigate.

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Final decision

11. We will not investigate Miss X’s complaint. This is because it is reasonable for Miss X to seek a remedy in the courts.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman