Summary: Miss T complains she injured herself in a fall caused by a badly maintained highway. The Ombudsman will not investigate this complaint about personal injury because Miss T has a legal remedy, and it would be reasonable of her to use this.

The complaint

1. The complainant, in this statement I will refer to her as Miss T, says she tripped on the highway, injuring herself. She believes the Council was at fault for not properly maintaining the highway and she wants compensation for her injury.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out the Ombudsman’s powers but also imposes restrictions on what she can investigate.
3. The law says the Ombudsman cannot normally investigate a complaint when someone could take the matter to court. However, she may decide to investigate if she considers it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c))

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How I considered this complaint

4. Miss T says she tripped on a highway path. She says she sprained her ankle and suffered a loss of income as she could not work.
5. If Miss T believes she suffered a personal injury because of negligence by the Council she may make a claim in court. Because she has this legal remedy her complaint is outside the jurisdiction of the Ombudsman.
6. I have considered if I should exercise the discretion open to me to investigate the complaint even though there is a remedy in court.
7. I have discretion to investigate the complaint even though Miss T has a legal remedy. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which require the more stringent and structured procedures of civil litigation for their proper determination.
8. In addition, only a court could determine if the Council has been negligent, what damages must be paid. The Ombudsman has no powers to enforce such an award.
9. In addition, a highway authority has a statutory right under Section 58 of Highways Act 1980 to put forward a defence in court against a damage claim. If the Ombudsman were to investigate, she would be denying the Council its right to defend itself in court against such a claim.
10. For these reasons it seems to me reasonable that Miss T should take legal action if she believes the Council is at fault and so I will not exercise discretion to investigate the complaint.

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Final decision

11. The Ombudsman will not investigate Miss T’s complaint about a personal injury because she has a legal remedy and it would be reasonable for her to use it.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman