Summary: We will not investigate Mrs X’s complaint about the Council’s decision to refuse her claim for damages after her electric wheelchair hit a hole at a dropped kerb crossing. 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 about the Council’s decision to refuse her claim for damages after her electric wheelchair was damaged when it hit a hole at a dropped kerb crossing. Mrs X also complains she received a pro forma response which referred to her wheelchair as if it was a car. She does not feel the Council has treated her fairly as a disabled person.

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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 and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mrs X submitted a claim for damages after her electric wheelchair was damaged when it hit a hole at a dropped kerb crossing which she was unable to see.
8. The Council has considered Mrs X’s claim. It denied liability and explained its reasons for refusing a claim of negligence..
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. This involves looking rigorously, and in a structured way at evidence, as only the courts can, to make its findings.
10. We also have no powers to recommend or enforce any award of damages. We cannot recommend actions or payments that ‘punish’ the Council. We would expect someone in Mrs X’s position to seek a remedy in the courts, either directly or via her insurers if she wishes to pursue the matter further. Making a claim in the courts 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. Mrs X also complains about the Council’s response to her claim and its use of a pro forma letter. We do not consider complaint handling issues in isolation where we are not also considering the substantive matter. This is because it is not a good use of limited public resources for us to do so.

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Final decision

12. 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.

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Investigator's decision on behalf of the Ombudsman