Summary: We will not investigate Mrs B’s complaint that she suffered injuries due to the Council’s failure to maintain a pavement. This is because it is reasonable for Mrs B to pursue her compensation claim by taking the Council to court.

The complaint

1. Mrs B complains she slipped and suffered injuries because of the Council’s failure to maintain a pavement it is responsible for. Mrs B would like the Council to pay her compensation for the injuries she suffered and to fix the defect.

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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. The Act 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 considered information provided by Mrs B.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mrs B says her injuries were caused by the Council’s failure to maintain a pavement it is responsible for. So, in effect, Mrs B complains the Council has been negligent.
7. The role of the Ombudsman is to consider complaints of administrative fault. We cannot decide negligence claims. This is for the Council’s insurers and ultimately for the courts.
8. Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings.
9. In addition, only a court can decide if an organisation has been negligent and so should pay damages.
10. We cannot recommend actions or payments that ‘punish’ the organisation. Also, unlike the Ombudsman, the court can order a party to pay damages.
11. Mrs B has put in a claim to the Council’s insurers. If the Council’s insurers do not accept the Council was negligent or make an offer which Mrs B is not satisfied with, Mrs B may pursue her claim by taking the Council to court.
12. I find it is reasonable for Mrs B to do this. The fee for making a claim is relatively modest and Mrs B may ask for the fee to be reimbursed if her claim is successful.
13. So, we will not investigate this complaint.

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Final decision

14. We will not investigate Mrs B’s complaint because it is reasonable for her to take the Council to court.

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Investigator's decision on behalf of the Ombudsman