The Ombudsman's final decision
Summary: We will not investigate Mr C’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 C to take the Council to court.
The complaint
Mr C complains his car was damaged after driving over a pothole which the Council had failed to repair. Mr C says the Council has refused to accept responsibility for the damage even though it is responsible for maintaining the road. Mr C would like the Council to admit fault and pay him compensation.
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 C.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr C complains his car was damaged because the Council failed to maintain a road it is responsible for. So, in effect, Mr C’s complaint is that the Council has been negligent.
The Council has considered Mr C’s claim for compensation but did not accept the Council is liable for the damage to his car. Mr C may 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 presence of a road defect is not enough on its own to show negligence.
This is because a local highways authority has a statutory defence if it can show it could not reasonably have been expected to put right any defects before the incident happened.
The Council has relied on this statutory defence. 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 C’s position to seek a remedy in the courts, directly or through his insurers.
I do not consider there is any exceptional reason why it would be unreasonable to expect Mr C to pursue his compensation claim at court.
So, we will not investigate this complaint.
Final decision
We will not investigate Mr C’s complaint because it is reasonable for him to take the Council to court.
Investigator's decision on behalf of the Ombudsman