Summary: We will not investigate Ms B’s complaint that she suffered injuries after tripping on an uneven pavement. This is because it is reasonable for Ms B to take the Council to court. An investigation solely into the Council’s handling of Ms B’s claim is not justified.

The complaint

1. Ms B complains she suffered injuries after tripping on an uneven pavement which the Council had failed to repair. Ms B complains the Council’s insurer took over one year to consider her compensation claim before deciding the Council was not negligent. Ms B says neither the Council nor its insurer have showed any concern or compassion. Ms B would like the Council to show more care and sympathy, and to pay her compensation for the injuries she suffered.

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

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My assessment

6. The Council as a local highways authority has a statutory duty to maintain adopted streets. The Council is expected to routinely monitor the state of highways and carry out repairs where necessary. But importantly, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
7. We do not normally investigate personal injury complaints caused by highway disrepair. This is because in effect such complaints are that an organisation has been negligent. Our role is to consider complaints of administrative fault.
8. Negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
9. Ms B has received the Council’s decision on her compensation claim. Ms B may pursue her claim by taking the Council to court. Only a court can decide if the Council was negligent and if so, make an order for damages. We cannot recommend actions or payments that ‘punish’ an organisation.
10. So, I would usually expect someone in Ms B’s position to seek a remedy in the courts. I find it is reasonable for Ms B to do this and the initial fee for making a claim is relatively modest. Ms B may also seek legal advice if needed.
11. So, we will not investigate Ms B’s complaint about the Council’s insurer’s decision on her claim.
12. Ms B also complains about the time taken by the Council’s insurer to decide her claim and the tone of the correspondence from the Council and its insurer.
13. We would not normally start an investigation solely into a council’s handling of an insurance claim if, as with this complaint, we are not investigating the incident itself. I find an investigation into these matters is not justified.
14. Ms B has now received the Council’s insurer’s decision on her claim. Insurance claims can take some time to be investigated. An investigation into the insurer’s handling of Ms B’s claim is unlikely to be a good use of our resources or achieve a meaningful outcome for Ms B.
15. Equally, a claim of negligence is a legal matter so the language used by local authorities and insurers can appear formal. I find the Council’s insurer’s decision on Ms B’s claim is written in an appropriate tone and expresses sympathy for Ms B’s situation. So, an investigation is not justified.

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Final decision

16. We will not investigate Ms B’s complaint because it is reasonable for her to take the Council to court. An investigation solely into the handling of Ms B’s claim is not justified.

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Investigator's decision on behalf of the Ombudsman