The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint the Council has refused his claim for pothole damage to his vehicle and unfairly applied its unacceptable behaviour policy to him. It is reasonable for Mr X to use his legal remedy, at court, if he wants to pursue a claim for damage. There is insufficient evidence of Council fault in the use of the unacceptable behaviour policy.
The complaint
Complaint 1: Mr X complains the Council has refused his claim, made in August 2022, for pothole damage to his car. Mr X says he previously reported the pothole to the Council, but he forgot the pothole was there. Mr X says he has spent £550 due to the condition of the road having also had two incidents causing damage to his car last year. Mr X wants the Council to pay for the damage.
Complaint 2: Mr X complains the Council has treated him unfairly by limiting his contacts under its unacceptable behaviour policy. Mr X says he contacted councillors and the chief executive when the complaint section failed to reply to one of his emails. Mr X says he has a right to contact who he wants and how he wants. He says he was refused the right to appeal the insurance decision rejecting his claim and cannot make further claims.
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 have considered Mr X’s information and comments. The Council has provided correspondence and its unacceptable behaviour policy. I have considered our last decision, 24 June 2022, on Mr X’s complaint about the road condition at the same location (22 003 717). I have considered Mr X’s reply to my draft decision statement.
My assessment
I will not investigate this complaint for the following reasons: Complaint 1: Mr X’s complaint about damage to his vehicle is outside the Ombudsman’s jurisdiction (see paragraphs 3 and 4 above). Mr X has or had a legal remedy at court if he wants to pursue a claim that the Council is responsible for damage to his vehicle.
I consider it reasonable for Mr X to use his legal remedy. A court has the power to consider the actions of both parties and award damages. On 5 September the Council’s insurer rejected Mr X’s claim for damages arguing it has a reasonable inspection system and has regularly monitored the road since the pothole was reported. The Council says the repair was not dangerous and it was reasonable to have a 3-month target for repair. The Council says it has repaired the road at that location.
Complaint 2: There is insufficient evidence of fault in the Council applying its unacceptable behaviour policy or the advice given to Mr X: On 30 September 2022, the Council wrote to Mr X and explained the position. It has asked Mr X to stop communicating about his insurance claim and has advised him to take legal advice. There is no fault in the Council not dealing with the matter further having explained the decision to refuse the claim. The Council has not refused to deal with a new claim.
The Council says it has applied its policy because Mr X continued to contact the chief executive, leader of the Council, and officers and is pursuing the matter after the decision has been made. The Council’s decision is also based on the impact on officers of Mr X’s contacts. It says if there is a new complaint Mr X must communicate in writing with the complaints team. The Council says the restriction will last one year and, in line with its policy, will be reviewed after 6 months.
Given the road is repaired and the claim dealt with there is no reason for Mr X to continue communicating with the Council in the same way. Mr X tells me he has asked the complaint team not to contact him. He should comply with the Council’s advice on further communication or it may consider him unreasonable.
Final decision
The Ombudsman will not investigate Mr X’s complaint the Council has refused his claim for pothole damage to his vehicle and unfairly applied its unacceptable behaviour policy to him. It is reasonable for Mr X to use his legal remedy if he wants to pursue a claim for damage. There is insufficient evidence of Council fault in the use of the unacceptable behaviour policy.
Investigator's decision on behalf of the Ombudsman