The Ombudsman's final decision
Summary: We will not investigate Mrs B’s complaint that her car was damaged due to the Council’s failure to repair a pothole. This is because it is reasonable for Mrs B to pursue her compensation claim by taking the Council to court.
The complaint
The complainant, who I will refer to as Mrs B, complains that her car was damaged due to the Council’s failure to repair a large pothole. Mrs B complains the Council has refused to accept liability for the damage to her car. Mrs B would like the Council to pay her 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 Mrs B.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs B’s complaint is that her car was damaged due to Council negligence. Deciding about 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, the Council has a statutory defence if it can show it could not reasonably have been expected to put right any defects before the incident happened. In addition, only a court can decide if an organisation has been negligent and so should pay damages.
I cannot decide whether an organisation has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Mrs 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 Mrs B cannot do this. So, we will not investigate this complaint.
Final decision
We will not investigate Mrs B’s complaint because it is reasonable for her to pursue her compensation claim at court.
Investigator's decision on behalf of the Ombudsman