Summary: We will not investigate this complaint about an accident the complainant had in 2016. This is because it is a late complaint and we do not make decisions about personal injury claims.

The complaint

1. The complainant, whom I refer to as Ms X, complains she tripped on a path in 2016 and hurt her arm and knee. She says the Council has not repaired the path.

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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. 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)
5. Complaints about personal injuries need to be determined through the courts or insurers. Court action for a personal injury must start within three years of the date of the accident.

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How I considered this complaint

6. I read the complaint and got some information from the Council. This includes photographs showing the Council fixed the path in 2018 and information about an insurance claim Ms X made in 2019. I considered comments Ms X made in reply to a draft of this decision.

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What I found

What happened

7. Ms X fell in 2016 and injured her arm and knee. She says the fall was caused by uneven paving stones. Ms X could not drive for about six weeks and it affected her ability to help run a family business.
8. The Council repaired the path in 2018 although this is denied by Ms X. The Council inspected the path a few weeks ago and says that, while there are tree roots, no repairs are needed at the moment. The Council will monitor the path and do repairs if they are needed.
9. Ms X made a claim on the Council’s insurance in May 2019. She says she was aware of the three year rule to start legal action. The Council investigated the claim and decided it was not liable. It sent a letter to Ms X’s solicitor in July 2019 denying liability for the accident. The Council has not heard anything further from Ms X. Ms X says she could not persuade her solicitor to take the case further because their view was that she did not have at least a 51% chance of success. Ms X disagrees with this assessment.
10. Ms X says she has photographs of her injuries and took photographs of the path in 2019. She also took measurements of the path in 2019.

Assessment

11. I will not start an investigation because this is a late complaint. The accident happened in October 2016 but Ms X did not make her insurance claim until May 2019. She then waited until December 2020 to complain to the Ombudsman. I appreciate that in the initial period after the accident Ms X may not have felt well enough to complain and she was busy. But I have not seen a good reason to accept a complaint which is four years old, especially as Ms X knew in July 2019 that the Council had denied liability and her solicitor would not take the case further.
12. I also will not start an investigation because this is a matter for the courts. We do not act as an appeal body and do not determine claims for damages or make decisions about liability and negligence. The courts decide if a council has been negligent and whether it should compensate someone for an injury. Only the courts have the necessary expertise to determine liability and, if a court decides a council has been negligent, to decide what should be paid in damages. Unfortunately, it is too late for Ms X to start legal action.
13. Finally, I have seen photographs which show the Council repaired the path in 2018. It has recently inspected the path again and, while there may be defects, the Council has decided no further repairs are needed at the moment. This is a decision the Council is entitled to make and it is not fault for a council to follow the advice of its highway inspectors.

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Final decision

14. I will not start an investigation because this is a late complaint and because this was a matter for insurers or the courts.

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Investigator's decision on behalf of the Ombudsman