Decision : Closed after initial enquiries
Decision date : 20 Mar 2015
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate this complaint about damage to a vehicle caused by a pothole because the complainant has a legal remedy and so his complaint is outside her jurisdiction.
- The complainant, in this statement I will refer to him as Mr A, says the Council was negligent in failing to keep the highway in repair. A pothole caused damage to his car and the Council has refused to refund the cost of putting it right.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out the Ombudsman’s powers but also imposes restrictions on what she can investigate.
- The law says the Ombudsman cannot normally investigate a complaint when someone could take the matter to court. However, she may decide to investigate if she considers it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c))
How I considered this complaint
- I have
- considered the information Mr A provided in his telephoned complaint
- explained my draft decision to Mr A and offered him the opportunity to respond
What I found
- Mr A says a pothole in the highway damaged his car. He says the Council was negligent in allowing the highway to fall into disrepair.
- He asked the Council to refund the cost of putting his car right. The Council denies negligence and has refused to reimburse him.
- If Mr A believes the Council has been negligent he can pursue a claim against it for damages in court. For that reason his complaint is outside the jurisdiction of the Ombudsman.
- I have discretion to investigate the complaint even though Mr A has a legal remedy. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which require the more stringent and structured procedures of civil litigation for their proper determination.
- In addition, only a court could determine if the Council has been negligent what damages must be paid. The Ombudsman has no powers to enforce such an award.
- For these reasons it is reasonable that Mr A should take legal action if he believes the Council is at fault and so I will not exercise discretion to investigate the complaint.
- The Ombudsman will not investigate this complaint about damage to a vehicle caused by a pothole because the complainant has a legal remedy and so his complaint is outside her jurisdiction.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman