Summary: We will not investigate this complaint about an accident for which Ms Y is claiming compensation for personal injury. This is because it would be reasonable for Ms Y to take the matter to court.

The complaint

1. Mrs X complains on behalf of a family member, Ms Y, that the Council failed to maintain a footpath, which caused Ms Y to slip and have a heart attack from the stress of the fall. Mrs X says Ms Y had to spend time in hospital and the accident has affected her mobility. Mrs X complains the Council has not cleared the path since the accident and Ms Y has recently slipped again.

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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 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

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Ms Y had an accident while using a path and was injured. She made a claim for compensation with the Council’s insurers.
7. We do not normally investigate complaints about personal injury caused by any failure to maintain a footpath. This is because in effect such complaints are that an organisation has been negligent. Our role is to consider complaints of administrative fault. Negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
8. I, therefore, will not investigate this complaint. Ms Y contacted the Council’s insurers to make a compensation claim. We cannot intervene in that process. The Council has explained that it does not provide a complaint response while such a claim is under investigation because, to do so, may affect the outcome of the claims process.
9. Ms Y may start legal action if there is any continuing dispute about liability and a claim for damages. It is reasonable to expect Ms Y to do this if her claim is rejected because the courts are the appropriate body to decide if the Council was responsible for the accident and, if so, what level of compensation should be made. These are judgements that only the courts can make.

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Final decision

10. We will not investigate this complaint about an accident for which Ms Y is claiming compensation for personal injury. This is because it would be reasonable for Ms Y to take the matter to court.

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Investigator's decision on behalf of the Ombudsman