Summary: We will not investigate Mr X’s complaint about the Council’s decision to refuse his partner’s claim for damages after she was injured following a fall. This is because this is a complaint about negligence which is a legal matter for the courts to consider and decide.

The complaint

1. The complainant, whom I shall call Mr X, complains on behalf of his partner, Ms Y. Ms Y broke her thumb when she fell over a damaged drain. The Council has refused her claim for damages.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. In October 2021, Ms Y broke her thumb when she fell over a damaged drain. Mr X submitted a claim for damages to the Council on Ms Y’s behalf in relation to her injury, loss of earnings and medical expenses.
8. The Council’s insurers denied liability. It informed Mr X of Ms Y’s right to pursue her claim for damages in the courts.

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Final decision

9. We will not investigate this complaint. This is because it is a complaint about negligence which is a legal matter for the courts to consider and decide. The Ombudsman cannot decide a negligence claim. Only the courts can decide if Ms Y’s losses have been caused by negligence by the Council and, if so, whether to award any damages Ms Y seeks. It is reasonable to expect Ms Y to use her right to pursue her claim in the courts. This is a simple low cost procedure with fees on a sliding scale dependent on the level of the claim. Those on a low income can apply for help with the fees.

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Investigator's decision on behalf of the Ombudsman