Summary: We will not investigate Mr X’s complaint about his partner being injured following a fall on a slanted pavement edge. 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. Also, there is no sign of fault in the way the Council considered Mr X’s request to make changes to the pavement.

The complaint

1. The complainant, Mr X, complains his partner, Miss Y, fractured her ankle and suffered nerve damage following a fall whilst walking with her cane on a slanted pavement edge. Mr X also complains about the Council’s decision not to make changes to the pavement.

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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)
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

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

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My assessment

8. Mr X complained to the Council after his partner, Miss Y, fractured her ankle and suffered nerve damage following a fall on a pavement. Miss Y is blind and uses a cane. Mr X says her fall was caused by the pavement edge slanting slightly. He asked the Council to install tactile paving at the location and to award damages for Miss Y’s injury.
9. The Council did not uphold the complaint. It inspected and assessed the pavement and found no actionable faults. It considered and assessed Mr X’s request for tactile paving at the location. It decided this would not be appropriate and explained its reasons in its response to Mr X.
10. We will not investigate this complaint. This is because this is essentially a complaint about negligence which is a legal matter for the courts to consider and decide. We cannot decide a negligence claim. Only the courts can decide whether an organisation has been negligent and, if so, whether it should award any damages and at what level. We cannot make such a ruling. Also, we cannot award compensation or recommend actions or payments that ‘punish’ the Council. If Mr X considers the Council to be liable for Miss Y’s injury and wants to pursue the matter he can make a claim in the courts. Making a claim in the small claims court is a simple, low cost and accessible process with fees set on a sliding scale depending on the level of the monetary claim. Those on a low income can apply for help with the fees.
11. We will not consider Mr X’s complaint about the Council’s decision not to make changes to the pavement. This has been considered and assessed by the Council’s relevant officers and the Council has clearly explained its decision. We are not an appeal body. This means we do not take a second look at a decision to decide if it was wrong, or whether we agree or disagree with it. Instead we look at whether there was fault in how the Council made its decision. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.

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Final decision

12. We will not investigate Mr X’s complaint because it is about negligence which is a legal matter for the courts and there is no sign of fault in the Council’s consideration of Mr X’s request for tactile paving at the location.

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Investigator's decision on behalf of the Ombudsman