The Ombudsman's final decision
Summary: We will not investigate this complaint about an injury sustained on the public highway. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. Complaints involving personal injury from alleged negligence are best dealt with by insurers and the courts.
The complaint
The complainant, whom I shall refer to as Miss X, complained the poor state of the public highway led to a fall and injuries. Miss X wants the Council to apologise and pay compensation.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (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 information provided by the complainant and the Ombudsman’s Assessment Code.
My assessment
We will not start an investigation into Miss X’s complaint.
Our role is to consider complaints about administrative fault. But the issue at the heart of this complaint is if the Council has been negligent in its maintenance of the public highway. We cannot establish liability in complaints involving negligence and personal injury. These are issues for the Council’s insurers and, ultimately, for the courts.
If the Council’s insurers reject a formal claim from Miss X it is open to her to make a claim in court. I consider it would be reasonable for her to do so. The process is simple and not expensive. The Court can decide if the Council is responsible for the injuries Miss X sustained. The Court can decide the question of negligence and what damages, if any, the Council should pay. These are not decisions the Ombudsman can take and so an investigation is not appropriate.
Final decision
We will not investigate Miss X’s complaint. This is because it is reasonable for her to pursue her claim for damages through the Council’s insurers and the courts.
Investigator's decision on behalf of the Ombudsman