The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s response to the complainant’s personal injury claim. This is because it would have been reasonable for her to pursue the matter in court.
The complaint
The complainant, who I will refer to as Ms B, complains that the Council has been at fault in the handling of her personal injury claim and her subsequent complaint.
The Ombudsman’s role and powers
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 information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms B suffered an injury which she contends was caused by the Council’s failure to maintain the highway. She made a claim which the Council placed in the hands of its insurers. The insurers denied that the Council was liable for Ms B’s injury.
Ms B complains that the Council gave false information to the insurer. She also complains that the Council has declined to investigate her subsequent complaint.
The Ombudsman will not investigate Ms B’s complaint. Essentially, the substantive matter amounts to an allegation that the Council has been negligent, and that this negligence caused Mrs B’s injury. The Ombudsman could not determine whether negligence on the Council’s part means it is liable. Liability can only be definitively determined in court.
Once the Council denied liability, Ms B’s recourse was to pursue the matter in court. Whether to use this recourse was a matter for her and her legal representative. But it would have been reasonable for her to do so in order to establish liability. The Ombudsman will not intervene.
Given that we will not investigate issues around Ms B’s injury, we will not consider the Council’s response to her subsequent complaint. It is not a good use of public resources to investigate complaints about complaint procedures if we are unable to deal with the substantive issue.
Final decision
We will not investigate Ms B’s complaint because it would have been reasonable for her to pursue the matter in court.
Investigator's decision on behalf of the Ombudsman