London Borough of Wandsworth (19 016 918)
Category : Transport and highways > Other
Decision : Closed after initial enquiries
Decision date : 13 Feb 2020
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Ms X’s complaint about an injury she suffered from a fall on the public highway. This is because it is reasonable for her to seek compensation through the courts.
The complaint
- The complainant, whom I shall call Ms X, complains about an injury she suffered from a fall on the public highway. She says the fall was due to the condition of the pavement and wants the Council to pay compensation.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
- 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)
How I considered this complaint
- I considered Ms X’s complaint to the Ombudsman and the information she provided. I also gave Ms X the opportunity to comment on a draft statement before issuing a final decision on her complaint.
What I found
- Ms X complains about an injury she suffered from a fall on the public highway. She says the fall was due to the condition of the pavement and wants the Council to pay compensation. The Council’s insurers have refused her claim.
- The role of the Ombudsman is to consider complaints about administrative fault. We cannot establish liability in complaints involving personal injury. These are a matter for the Council’s insurers and, ultimately, for the courts.
- Now the Council’s insurers have rejected Ms X’s request for damages, it is open to her to make a claim in court. I consider it would be reasonable for her to do so. This is because only the Court can decide if the Council has been negligent. The Court can decide what damages, if any, the Council should pay. Also, Section 58 of the Highways Act 1980, gives a council the right to put forward in court a defence against claims for damage from the condition of the highway. The Ombudsman will not remove the right of the Council to use that defence by investigating Ms X’s complaint.
Final decision
- The Ombudsman will not investigate Ms X’s complaint. This is because it is reasonable for Ms X to use the legal remedy available to her.
Investigator's decision on behalf of the Ombudsman