The Ombudsman's final decision
Summary: We will not investigate this complaint about highways maintenance because it is reasonable to expect Miss Y to approach the court, which is better placed to consider the complaint.
The complaint
Miss Y complained the Council has failed to pay her compensation in a claim for damages to recover the costs of repairs to her vehicle after she drove over a pothole in the Council’s area.
Miss Y says she has spent time chasing the issue with the Council and the repairs were costly, causing her financial difficulty.
The Ombudsman’s role and powers
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) We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or continue an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information Miss Y provided and the Ombudsman’s Assessment Code.
My assessment
The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs to her car, which Miss Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. Where the Council has not made payment, if Miss Y wishes to pursue her claim she would need to go to court.
There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service and if Miss Y wishes she can include the cost of going to court in her claim. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Miss Y to be expected to go to court about this matter.
Final decision
We will not investigate Miss Y’s complaint because it is reasonable to expect Miss Y to approach the court, which is better placed.
Investigator's decision on behalf of the Ombudsman