Summary: The Ombudsman will not investigate Mrs X’s complaint that she trip and fell due to a defect on the public highway. This is because the courts are better placed to deal with the matter.

The complaint

1. The complainant, Mrs X, complains she tripped and fell over a defect in the pavement, causing her to break her wrist.

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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:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• 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 reviewed the information provided by Mrs X, shared my draft decision with her and considered her comments.

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What I found

5. Mrs X tripped and fell while walking on the pavement in 2019. She visited the hospital several months later and was found to have a broken wrist. Mrs X made a claim to the Council for compensation for her injury but the Council’s insurers rejected her claim.

6. Whether the Council is liable for Mrs X’s injury is a legal issue. It requires interpretation of the Highways Act 1980 to determine if the Council met its obligations in relation to the Act and if it can rely on the special defence provided by Section 58. This is not something the Ombudsman can provide. The courts are better placed to deal with the issue and if Mrs X wishes to pursue it she may wish to seek legal advice.

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Final decision

7. The Ombudsman will not investigate this complaint. This is because the courts are better placed to deal with the issue.

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Investigator's decision on behalf of the Ombudsman