The Ombudsman's final decision
Summary: We will not investigate Ms B’s complaint that her car was damaged due to the Council’s failure to repair a large pothole. This is because it is reasonable for Ms B to pursue her compensation claim by taking the Council to court.
The complaint
Ms B complains her car was damaged after driving over a large pothole which the Council had failed to repair. Ms B says she was without her car for two weeks and had to pay £180 for repairs. Ms B complains the Council has wrongly refused to accept responsibility for the damage.
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 Ms B.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms B complains her car was damaged because the Council failed to maintain a road it is responsible for. So, in effect, Ms B’s complaint is that the Council has been negligent.
The Council has considered Ms B’s claim for compensation but did not accept the Council is liable for the damage to her car. Ms B may pursue her 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.
Part of Ms B’s complaint is that the Council has wrongly applied a lower standard of road maintenance because the location of the incident is not adopted highway. The courts are in the best position to decide whether the Council is entitled to make this argument as part of its 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 Ms B’s position to seek a remedy in the courts, directly or through her insurers. I do not consider there is any exceptional reason why Ms B cannot do this.
So, we will not investigate this complaint.
Final decision
We will not investigate Ms B’s complaint because it is reasonable for her to pursue her compensation claim at court.
Investigator's decision on behalf of the Ombudsman