The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s handling of a personal injury claim as we cannot achieve the outcome the complainants seek, as this matter is ultimately for the courts.
The complaint
Mrs X’s father fell on the steps of a Council building, breaking his wrist. Mrs X complains the Council holds no records to show that the steps were compliant with building regulations at the time of their construction. Mrs X complains this has delayed her father’s claim for compensation with the Council’s insurers, for compensation for his injuries. Mrs X says she has been caused stress in trying to deal with this matter and that Mr Y continues to be physically limited from this injury. Mrs X wants the Council to apologise for she says, its poor record keeping and to arrange mediation to resolve the matter out of court and to settle the claim.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide we cannot achieve the outcome someone wants (Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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) We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
We cannot determine if the Council is legally liable for the injury to Mr X. Such a decision is for the courts and it is open to Mr X to take legal action for the compensation he seeks either independently or with legal help. There is a procedure open to anyone to make a money claim in the courts and many solicitors will consider taking on cases on a ‘no win no fee’ basis. It is reasonable for court action to be taken in this case and as such we would not investigate this matter.
I recognise Mrs X is frustrated at the progress of the claim, but we will not investigate how the claim is being processed when we cannot investigate the substantive matter itself ie the personal injury claim. In addition, our role is not to facilitate negligence claims and we cannot require the Council to take part in mediation.
Any complaint Mrs X has about the Council’s record keeping or lack thereof is best raised with the Information Commissioner’s Office (ICO). The ICO is the UK’s independent data protection regulator and can decide if the Council is at fault in its record keeping.
For these reasons, we will not investigate.
Final decision
We will not investigate this complaint as the substantive matter is for the courts and so we will not investigate associated matters. The ICO is best placed to assess the Council’s record keeping.
Investigator's decision on behalf of the Ombudsman