Summary: We will not investigate Mr B’s complaint that he suffered injuries after tripping on a Council pavement. This is because it is reasonable for Mr B to pursue his compensation claim by taking the Council to court.

The complaint

1. Mr B complains he tripped on the access flap for a utility cover on a Council pavement. Mr B says the access flap is not safe because it can be lifted up easily and left in a dangerous position. Mr B complains the Council refused his compensation claim for the injuries he suffered and wrongly insists this utility cover is safe.

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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 Mr B.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr B complains he tripped and suffered injuries because of the Council’s failure to make safe a trip hazard on a pavement which the Council is responsible for. So, in effect, Mr B complains his injuries were the result of negligence by the Council.
7. We take the view negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
8. Mr B has received the Council’s insurer’s decision in response to his claim. The Council decided the access flap is not defective and the Council is not liable for the injuries Mr B suffered. Mr B may now pursue his claim by taking the Council to court.
9. 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.
10. In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation and we cannot order a party to pay damages.
11. I find it is reasonable for Mr B to take the Council to court. The fee for making a claim is relatively modest and Mr B may ask for the fee to be reimbursed if his claim is successful.
12. So, we will not investigate this complaint.

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Final decision

13. We will not investigate Mr B’s complaint because it is reasonable for him to take the Council to court.

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Investigator's decision on behalf of the Ombudsman