Summary: We will not investigate Mrs X’s complaint about the Council’s decision to refuse her claim for damages following a fall on the highway. This is because this is a complaint about negligence which is a legal matter for the courts to consider and decide and it is reasonable to expect Mrs X to use her right to pursue her claim in the courts.

The complaint

1. The complainant, whom I shall call Mrs X, complains the Council refused her claim for damages after she was injured when she tripped and fell on a traffic island due to a missing bollard cover. Mrs X also complains the Council took too long to decide her claim.

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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 do not start an investigation if we decide 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. Mrs X submitted a claim for damages to the Council after she tripped and fell on a traffic island in the middle of the highway. Mrs X says this was caused due to a missing bollard cover. Mrs X injured her hand and bruised her leg.
8. The Council considered Mrs X’s claim. It denied liability and set out its reasons and defence against a claim of negligence. Mrs X says the Council relied on inaccurate information when deciding her claim.
9. This is not a complaint we will investigate. This is because this is a complaint about negligence which is a legal matter for the courts to consider and decide. We cannot decide a negligence claim or make a ruling on whether the Council was negligent. Only the courts can decide if the Council was negligent and, if so, whether it should award any damages Mrs X seeks. It is reasonable to expect Mrs X to use her right to pursue her claim via the courts. Making a claim in the small claims court is a simple, low cost and accessible process with fees on a sliding scale depending on the level of the claim. Those on a low income can apply for help with the fees.
10. Mrs X also complained the Council took too long to decide her claim. We will not investigate complaints about complaint handling issues where we are not also considering the substantive issue. This is because it is not a good use of limited public resources for us to do so.

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Final decision

11. We will not investigate Mrs X’s complaint because it is about a negligence claim which is a legal matter for the courts and it is reasonable to expect Mrs X to use her right to make a claim in the courts.

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Investigator's decision on behalf of the Ombudsman