Summary: The Ombudsman will not investigate Mr R’s complaint about falling over on an uneven pavement. This is because it would be reasonable to expect Mr R to pursue his claim for compensation through the courts.

The complaint

1. Mr R seeks compensation after falling over on an uneven pavement. Mr R says the Council has not dealt with his complaint properly because it referred the matter to an insurance company.

Back to top

The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)

Back to top

How I considered this complaint

4. I have considered what Mr R said in his complaint. Mr R commented on a draft of this decision and provided additional information.

Back to top

What I found

5. Mr R fell on a pavement which he says caused him physical injury. Mr R complained to the Council, which referred the matter to an insurance company. The insurance company said the Council inspected the pavement and was satisfied it had not acted negligently and was not in breach of its statutory duty.
6. Mr R wants the Council to recognise its responsibility for the accident and to pay compensation for his injury.
7. This is essentially a claim that disrepair of the highway caused personal injury. Mr R has the right to take legal action against the Council for the redress he seeks so the restriction in paragraph 3 above applies. Only the courts can decide if the Council is legally liable for Mr R’s injury and if compensation should be paid.
8. It is also the case the law specifically provides for the courts to decide claims arising from disrepair of a highway. It sets out what the court must consider and says the highways authority has the right to put forward a defence in court. The Ombudsman cannot remove that right and investigate something the courts should consider. (Highways Act 1980, section 58)
9. Mr R says he has not taken the matter to Court because he would prefer to use his own persuasion and rational argument to settle the matter. Mr R says he is unable to do this because of the way the Council have communicated with him. It is open to Mr R to make his application to court and have it dealt with there as the law provides.
10. Mr R complains the Council has not dealt with him directly and instead referred the complaint to its insurers. It is not a good use of public resources to investigate complaints about how a council has dealt with a complaint, if we are unable to deal with the substantive issue.

Back to top

Investigator's decision on behalf of the Ombudsman