The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint about the Council’s decision to refuse her claim for damages after her car was damaged when it hit a pothole. This is because this is a complaint about negligence which is a legal matter for the courts to consider and decide.
The complaint
Ms X complains her car was damaged when it hit a pothole and the Council has refused her claim for damages.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) 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
Ms X submitted a claim for damages to the Council after her car was damaged when it hit a pothole.
The Council has considered Ms X’s claim and has denied liability. It has explained its reasons for denying liability.
Ms X disagrees with the decision to refuse her claim.
We will not investigate Ms X’s Complaint. This is because it is a complaint about negligence which is a legal matter for the courts to consider and decide. We cannot decide a negligence claim. Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence, as only the courts can, to make its findings. In addition, only a court can decide if the Council has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the Council.
We cannot decide whether the Council has been negligent and have no powers to enforce an award of damages. So, we would usually expect someone in Ms X’s position to seek a remedy in the courts, either directly or via her insurers. It is reasonable to expect Ms X to use her right to make a claim in the courts if she considers her claim has been wrongly declined by the Council.
Final decision
We will not investigate Ms X’s complaint because it is about negligence which is a legal matter for the courts to consider and decide.
Investigator's decision on behalf of the Ombudsman