Summary: We will not investigate Mrs X’s complaint about the Council’s decision to refuse her claim for damages after she was injured when she tripped on a protruding paving flag. This is because this is a complaint about negligence which is a legal matter for the courts to consider and decide.

The complaint

1. Mrs X complains the Council has refused her claim for damages after she was injured when she tripped on a protruding paving flag. Mrs X says her claim was quickly dismissed without a full investigation.

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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 was injured when she tripped on a protruding paving flag.
8. The Council’s insurers considered Mrs X’s claim and denied liability.
9. We will not investigate Mrs X’s complaint. This is because it is a complaint about negligence which is a legal matter for the courts to consider and decide. We cannot decide a negligence claim or award compensation. Deciding whether an organisation has been negligent involves looking rigorously, and in a structured way at evidence, as only the courts can, to make its findings. Also, only a court can decide if the Council has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the Council and we have no powers to enforce an award of damages.
10. It is reasonable to expect Mrs X to seek a remedy in the courts, either directly or via her insurers if she considers her claim has been wrongly declined by the Council.

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Final decision

11. We will not investigate Mrs X’s complaint because it is about negligence which is a legal matter for the courts to consider and decide. We cannot decide a negligence claim or award punitive damages.

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Investigator's decision on behalf of the Ombudsman