Summary: The Ombudsman will not investigate Mrs X’s complaint that the Council has refused her claim for compensation for a personal injury. The court is the body which can decide Mrs X’s claim. It is reasonable for Mrs X to take court action for the findings and compensation she seeks.

The complaint

1. Mrs X complains the Council’s insurers have unfairly refused her claim for compensation after she was seriously injured by tripping on Council land.
2. Mrs X holds the Council responsible for her injuries, which resulted in loss of earnings. She says the matter also caused her and her family stress, trauma and inconvenience. Mrs X wants the Council to pay her compensation.

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The Ombudsman’s role and powers

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)
4. 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)

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How I considered this complaint

5. As part of my assessment I have:
• considered the complaint and the documents provided by Mrs X;
• issued a draft decision, inviting Mrs X to reply, and considered her response.

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What I found

6. Mrs X has the right to take legal action against the Council, for the compensation she seeks, by making a claim to the courts. As this right exists, the law says we should not investigate unless we do not consider it is reasonable to expect Mrs X to resort to court action.
7. There is a procedure open to anyone to make their own compensation claim at court. I understand from Mrs X that in September 2018 she engaged a solicitor to assist her with a legal claim against the Council. The solicitor decided in April 2019 they would not proceed with the case on a ‘no win, no fee’ basis. To proceed with the case, Mrs X says she would have had to pay for the solicitor privately.
8. If Mrs X believes the Council is responsible for her injuries, she should pursue the matter in court. Only the courts can decide if the Council is legally liable for Mrs X’s injuries and if she is due compensation. So the court is the appropriate body to make a decision on Mrs X’s claims.
9. I recognise Mrs X says she could not fund the expense of paying a solicitor when going to court. Mrs X may choose to pursue her claim without legal representation. The court process allows for this. But in any event, it remains the case that the Ombudsman’s complaint process is not a replacement for the courts here, because it is only the courts which can make the findings she seeks.
10. For these reasons, I consider it is reasonable to expect Mrs X to pursue the matter in court, and the Ombudsman should not therefore investigate.

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Final decision

11. The Ombudsman should not investigate this complaint. This is because it is reasonable to expects Mrs X to take court action to pursue the legal finding against the Council and the outcome she seeks.

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Investigator's decision on behalf of the Ombudsman