Summary: We will not investigate this complaint about the Council’s negligence in maintaining the highway leading to falling accidents in 2023 and 2024. It is reasonable for Miss X to seek a remedy in the courts since the Council has denied liability for the claim she made.

The complaint

1. Miss X says she had injury accidents on the footway near her home in 2023 and 2024 caused by defects in the surface. She says she injured her knee and the defects cause access problems for her wheelchair. She submitted a claim against the Council’s public liability insurance but it was rejected. She says she should be compensated and the highway made safe.

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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)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

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

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My assessment

6. Miss X says she was injured in 2023 and again in 2024 by defects in the footway related to a tree stump which the Council failed to remove. She submitted a claim for negligence and the Council’s legal advisors denied liability for her injury, referring to the highway authority’s defence under s.58 of the Highways Act 1980.
7. We will not consider the details of the incidents which took place outside the 12-month period for receiving complaints. The time for receiving complaints is from when someone became aware of the matter they wished to complain about, not when they complained to the Council or it issued its final response. We would expect someone to complain to us within a year, even if they were dissatisfied with the time the complaints procedure was taking.
8. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts. It is normal procedure for persons suffering damages or personal injury caused by a council or its contractors to submit an insurance claim against the Council. Miss X has used this procedure and the claim was rejected.
9. Negligence claims and interpreting the law around legal torts are generally best decided by a court. Only a court can decide whether the problem should have been dealt with by the council before it caused harm or if the council is liable to pay “damages” for the loss or injury someone has suffered. Miss X served a letter before action to the Council in 2026 and it is reasonable for her to pursue this legal remedy.

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Final decision

10. We will not investigate this complaint about the Council’s negligence in maintaining the highway leading to falling accidents in 2023 and 2024. It is reasonable for Miss X to seek a remedy in the courts since the Council has denied liability for the claim she made.

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Investigator's decision on behalf of the Ombudsman