Summary
We will not investigate Ms X’s complaint about a claim for damage to her car. Ms X has an alternative legal remedy to pursue a claim of negligence through the courts. Only the courts can decide whether the Council was negligent .
It is therefore reasonable to expect Ms X to use her legal remedy.
The complaint
Ms X complains her car was damaged by a pothole on a council-maintained highway.
Ms X says this caused distress.
Ms X wants the Council to reimburse her for the repairs her car needed.
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 Ms X.
I considered the Ombudsman’s Assessment Code.
My assessment
We consider our powers on what we could achieve as part of our consideration of whether an alternative remedy exists and whether it is reasonable for a person to use it.
Negligence claims and interpreting the law around civil liability are generally best decided by a court where the Council does not accept insurance liability. Only a court can decide whether the problem should have been dealt with by the Council before it caused damage to a person’s property, or if it is liable to pay damages for a person’s loss.
We will not investigate Ms X’s complaint. We cannot decide liability for the damage to Ms X’s car, nor can we direct the Council to reimburse her for the cost of repair. Only the courts can do this. Therefore, it is reasonable for Ms X to take the matter to court.
Final decision
We will not investigate Ms X’s complaint because it is reasonable for her to take the matter to court.
Investigator's decision on behalf of the Ombudsman