The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about damage to his car caused by a pothole. This is because this is a complaint about negligence which is a legal matter for the courts to consider and decide should the Council deny liability on his claim.
The complaint
The complainant, whom I shall call Mr X, complains his car has been damaged by a pothole, causing damage costing almost £400 to repair.
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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X says his car has been damaged as a result of driving over a pothole. This cost him almost £400 to repair. He has submitted a claim for damages to the Council as he considers it to be liable. The Council has not yet decided his claim. Mr X says the Council has not updated him on his claim since December 2021.
Final decision
We will not investigate Mr X’s complaint because it lies outside our jurisdiction. This is because this is a complaint about negligence which is a legal matter for the courts to consider and decide, should the Council deny his claim. The Ombudsman cannot decide a negligence claim. Only the courts can decide if Mr X’s losses have been caused by negligence by the Council and, if so, whether to award any damages Mr X seeks. It is reasonable to expect Mr X to use his right to make such a claim in the courts if needed.
We will not consider complaints about complaint handling issues where the substantive matter lies outside our jurisdiction as it is not a good use of limited public resources to do so.
Investigator's decision on behalf of the Ombudsman