The Ombudsman's final decision
Summary: We will not investigate Miss X’s complaint about damage caused to her car by a pothole on a road maintained by the Council. This is because it is reasonable for Miss X to take the matter to the Council’s insurers and, ultimately, the courts.
The complaint
Miss X complained about damage caused to her car by a pothole in the Council’s area. Miss X said the matter caused her distress.
Miss X wants the Council to reimburse her costs associated with fixing 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 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)
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
We will not investigate this complaint. This is because Miss X’s complaint is mainly that the Council has been negligent, which resulted in damage to her car.
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. 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 Council.
Because the Ombudsman cannot decide whether the Council has been negligent and has no powers to enforce an award of damages, we expect someone in Miss X’s position to seek a remedy through the Council’s insurers and, ultimately, the courts.
If Miss X’s claim is rejected by the insurers, it is open to Miss X to take the matter to court. I do not consider there is any exceptional reason why Miss X cannot do this and so we will not investigate this complaint.
Final decision
We will not investigate Miss X’s complaint because it is reasonable to take the matter to the Council’s insurers and, ultimately, the courts.
Investigator's decision on behalf of the Ombudsman