Summary: Ms X complained about the Council’s handling of her claim following an accident when she tripped over raised paving and suffered injuries. The Ombudsman should not exercise his discretion to investigate this complaint. This is because it was reasonable for Ms X to take action in the Small Claims Court when the Council’s insurers denied liability for negligence.

The complaint

1. The complainant, whom I shall call Ms X, complained about the Council failing to accept that it was responsible for her accident with a raised paving stone. She says that it failed to consider her evidence and it refused to put her claim through its complaints procedure.

Back to top

The Ombudsman’s role and powers

2. 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)

Back to top

How I considered this complaint

3. I have considered all the information which Ms X submitted with her complaint. Ms X has commented on a copy of my draft decision.

Back to top

What I found

4. Ms X suffered injuries when she fell over a misaligned paving slab in the pavement in 2019. She submitted a claim to the Council and says she was unhappy with the response. The Council could not initially find the site in question but did so when she submitted photographs.
5. The Council’s insurers rejected Ms X’s claim because the defect in the footway was less than the level which required it to take action under its maintenance policy. Ms X wanted to make a complaint under the Council’s complaints procedure, but this was a legal claim, so it was not eligible for this procedure. The Council advised Ms X to seek legal advice if she wished to challenge liability for the incident.
6. The Ombudsman does not investigate complaints about personal injury or damage to property where there is a remedy available in the courts. In this case the Council has denied liability and Ms X would need to challenge this in the Small Claims Court which is the proper arena to determine these claims.

Back to top

Final decision

7. The Ombudsman should not exercise his discretion to investigate this complaint. This is because it was reasonable for Ms X to take action in the Small Claims Court when the Council’s insurers denied liability for negligence.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman