The Ombudsman's final decision
Summary: We will not investigate Mr & Mrs X’s complaint about the Council’s decision to refuse their claim for damages after their car was damaged when it hit a bollard. This is because this is a complaint about negligence which is a legal matter for the courts to consider and decide.
The complaint
The complainants, whom I shall call Mr & Mrs X, complain about the Council’s decision to refuse their claim for damages after their car hit a bollard.
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 do not start an investigation if we decide 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 and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr & Mrs X submitted a claim for damages to the Council after their car hit a short bollard which they said was not visible, causing damage to the car.
The Council considered the claim and denied liability. It said the damage to Mr & Mrs X’s car had been caused by driver error in hitting the bollard. It signposted Mr & Mrs X to seek independent legal advice or to pass it to their insurer to consider.
Mr & Mrs X remain dissatisfied with the Council’s handling of, and decision on, their claim.
We will not investigate this complaint. This is because this is a complaint about negligence which is a legal matter for the courts to consider and decide. We cannot decide a negligence claim and make a ruling on whether the Council has been negligent. Only the courts can make a ruling that the Council has been negligent and, if so, whether it will award any damages and at what level. It is reasonable to expect Mr & Mrs X to use their right to pursue their claim in the courts. Making a claim in the small claims court is a simple, low cost and accessible process with fees on a sliding scale depending on the level of the monetary claim. Those on a low income can apply for help with the fees.
Mr & Mrs X also complain about matters relating to the handling of the claim. We do not consider complaint handling issues in isolation where we are not also considering the substantive issue. This is because it is not a good use of our limited public resources for us to do so.
Final decision
We will not investigate Mr & Mrs X’s complaint because it is about negligence which is a legal matter for the courts to decide. If Mr and Mrs X wish to pursue the claim further it is reasonable to expect them to use their right to make a claim in the courts.
Investigator's decision on behalf of the Ombudsman