The Ombudsman's final decision
Summary: We will not investigate Dr B’s complaint that his car entered a flooded section of road because the Council failed to alert motorists to this hazard. This is because it is reasonable for Dr B to pursue his compensation claim by taking the Council to court.
The complaint
Dr B complains his car became submerged by deep floodwater because the Council failed to put in place any lights or warning signs to warn motorists of this hazard. Dr B says he had to be rescued from his car, which was later written off, and he has suffered significant emotional and financial distress because of this incident. Dr B says the Council has wrongly refused his claim for 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 Dr B.
I considered the Ombudsman’s Assessment Code.
My assessment
We do not normally investigate a complaint that a person has come to harm or had their vehicle damaged due to a local highways authority’s failure to maintain a highway. This is because in effect such complaints are that an organisation has been negligent. Our role is to consider complaints of administrative fault. Negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
Dr B 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.
Also, unlike the courts, we have no powers to enforce an award of damages.
So, I would usually expect someone in Dr B’s position to seek a remedy in the courts. Because of the seriousness of the incident Dr B complains about I find it is reasonable and proportionate for him to take the Council to court.
So, we will not investigate this complaint.
Final decision
We will not investigate Dr B’s complaint because it is reasonable for him to take the Council to court.
Investigator's decision on behalf of the Ombudsman