Summary: We will not investigate Mr X’s complaint about injury he suffered because of poor highway maintenance. Mr X can pursue a claim of negligence through the courts. It is reasonable for Mr X to take the matter to court because only the courts can decide whether the Council was negligent.

The complaint

1. Mr X complained he suffered a fall which caused him injuries because of a damaged kerb.
2. Mr X also complained about how the Council handled and responded to his complaint.
3. Mr X said he suffered injury and spent time and trouble communicating with the Council.

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The Ombudsman’s role and powers

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. Negligence claims and interpreting the law around civil liability are generally best decided by a court where the Council does not accept insurance liability. Only a court can decide whether the problem should have been dealt with by the Council before it caused damage to a person’s property, or if it is liable to pay damages for a person’s loss or injury.
6. We will not usually investigate complaint handling if we are not investigating the rest of the complaint. This is because there is not usually enough injustice to justify us doing so. We collect information about particularly poor complaint handling practice and report this back to organisations. (Local Government Act 1974, section 24A(6), section 34B(8))

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How I considered this complaint

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

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Final decision

9. We will not investigate Mr X’s complaint because it is reasonable to expect him to pursue a claim of negligence in court.

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Investigator's decision on behalf of the Ombudsman