The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council refusing to pay Mrs B compensation after she tripped on an uneven pavement. This is because it is reasonable for Mrs B to pursue her compensation claim by taking the Council to court.
The complaint
Mrs B complains she tripped on an uneven pavement which the Council had failed to repair. Mrs B says she suffered serious injuries because of the incident but the Council has wrongly refused her claim for compensation.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The Act 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 Mrs B.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs B complains she tripped on an uneven pavement which the Council had failed to fix. So, in effect, Mrs B complains her injuries were the result of negligence by the Council.
The Council’s insurers have considered Mrs B’s compensation claim but did not accept the Council was negligent. Mrs B may now pursue her claim by taking the Council to court.
Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings.
The Council has a statutory defence if it can show it could not reasonably have been expected to put right this defect before the incident happened.
Only the court can decide if the Council has been negligent and whether the Council is entitled to rely on this statutory defence.
In addition, only a court can decide if an organisation has been negligent and so should pay damages.
We cannot recommend actions or payments that ‘punish’ the organisation. Also, unlike the Ombudsman, the court can order a party to pay damages.
So, we would normally expect someone in Mrs B’s position to pursue their compensation claim by taking the Council to court.
I find it is reasonable for Mrs B to take the Council to court. The fee for making a claim is relatively modest and Mrs B may ask for the fee to be reimbursed if her claim is successful. Help with fees is also available for people on a low income.
So, we will not investigate this complaint.
Final decision
We will not investigate Mrs B’s complaint because it is reasonable for her to pursue her compensation claim by taking the Council to court.
Investigator's decision on behalf of the Ombudsman