The Ombudsman's final decision
Summary: We will not investigate Mr B’s complaint that his car was damaged due to the Council’s failure to maintain a road. This is because it is reasonable for Mr B to pursue his claim against the Council at court.
The complaint
Mr B complains his car was damaged by a pothole on a road which the Council is responsible for. Mr B says the Council’s insurers have wrongly refused his compensation claim. Mr B would like the Council to apologise and pay him compensation for the costs he incurred.
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 Mr B.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr B complains his car was damaged because the Council failed to maintain a road it is responsible for. So, in effect, Mr B’s complaint is that the Council has been negligent.
The Council’s insurers have considered Mr B’s claim for compensation but did not accept the Council has been negligent.
Mr B may now pursue his 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 relied on the statutory defence that 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.
I cannot decide whether the Council has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Mr B’s position to seek a remedy in the courts, directly or through his insurers.
I do not consider there is an exceptional reason why it would be unreasonable to expect Mr B to do this.
So, we will not investigate this complaint.
Final decision
We will not investigate Mr B’s complaint because it is reasonable for him to take the Council to court.
Investigator's decision on behalf of the Ombudsman