Summary
We will not investigate this complaint about a claim for damage to Mrs X’s car. Mrs 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 Mrs X to use her legal remedy.
The complaint
Mrs X complains her car was damaged by a pothole on a council-maintained highway, and the Council refused liability for the matter.
Mrs X says this caused distress and financial disadvantage.
Mrs X wants the Council to apologise, accept liability for the damage, reimburse her for the cost of repair and provide a symbolic financial remedy for her time and trouble in pursuing the matter.
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 Mrs 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.
As we cannot decide liability nor direct the Council to pay damages, it is reasonable for Mrs X to take the matter to court.
Final decision
We will not investigate Mrs X’s complaint because she has an alternative legal remedy through the courts. Only the courts can achieve the outcome she is looking for, so it is reasonable to expect Mrs X to use this remedy.
Investigator's decision on behalf of the Ombudsman