The Ombudsman's final decision
Summary: We will not investigate Miss B’s complaint that her car was damaged by a pothole. This is because it is reasonable for Miss B to pursue her compensation claim at court.
The complaint
The complainant, who I will refer to as Miss B, complains that her car was damaged after hitting a pothole which the Council had failed to repair. Miss B complains the Council has refused her compensation claim for the damage to her car.
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 Miss B.
I considered the Ombudsman’s Assessment Code.
My assessment
Miss B’s complaint is that her car was damaged due to Council negligence. 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 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. 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 Miss 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 Miss B cannot do this. So, we will not investigate this complaint.
Final decision
We will not investigate Miss B’s complaint because it is reasonable for Miss B to pursue her compensation claim at court.
Investigator's decision on behalf of the Ombudsman