The Ombudsman's final decision
Summary: We will not investigate this complaint about damage caused to the complainant’s car after hitting a pothole. This is because it is not unreasonable to expect him to take the matter to court to determine any liability owed by the Council.
The complaint
The complainant, Mr X, complained that his vehicle was damaged after hitting a pothole which the Council failed to repair or mark to warn drivers.
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 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 told us the Council had recently checked the pothole but failed to repair it within a timely manner. He questioned why the pothole was not marked to warn users. Mr X said this has caused financial loss. He wants the Council to compensate him.
The Council’s insurers considered Mr X’s complaint. But it said it does not consider the Council would be held to have been in breach of its statutory duties for any failure to act.
The role of the Ombudsman is to consider complaints of administrative fault. We cannot decide liability in complaints about damage to property. Only the court can decide if the Council has been negligent or in breach of its statutory duties. Also, unlike the Ombudsman, the court can order a party to pay damages. The court can decide what damages, if any, the Council should pay.
We would usually expect someone in Mr X’s position to seek a remedy in court if it remains unresolved. I do not consider there is any exceptional reason why Mr X cannot do this and so we will not investigate this complaint.
Final decision
We will not investigate Mr X’s complaint because it is not unreasonable to expect him to take the matter to court to determine any liability owed by the Council.
Investigator's decision on behalf of the Ombudsman