Summary: The Ombudsman will not investigate Miss X’s complaint about a fall she suffered on the public highway. This is because the complaint is late, and we cannot decide liability in personal injury claims. It is reasonable for Miss X to seek compensation through the courts.

The complaint

1. The complainant, whom I shall call Miss X, complains about a fall she suffered on the public highway. Miss X says the fall was due to a pothole on the pavement and she wants the Council to pay compensation.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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 there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
5. 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

6. 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 issuing a final decision on her complaint.

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What I found

7. Miss X says a pothole on the public highway caused her to fall over, leading to serious injuries. Miss X wants the Council to pay compensation. It has so far refused. The fall took place in March 2017.
8. The exception at paragraph 3 applies to Miss X’s complaint. The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are good reasons to do so. I do not consider that to be the case here. I see no reason why Miss X could not have complained much earlier.
9. But even if Miss X’s complaint was not late, we would not investigate. This is because the role of the Ombudsman is to consider complaints about administrative fault. We cannot establish liability in complaints involving personal injury. Such claims are a matter for the Council’s insurers and, ultimately, for the courts.
10. If the Council’s insurers reject a formal claim from Miss X for damages, it is open to her to make a claim in court. I consider it would be reasonable for her to do so. This is because only the Court can decide if the Council has been negligent. The Court can decide what damages, if any, the Council should pay. These are not decisions for the Ombudsman.

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Final decision

11. The Ombudsman will not investigate Miss X’s complaint. This is because the complaint is late, and it is reasonable for Miss X to use the legal remedy available to her.

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Investigator's decision on behalf of the Ombudsman