Decision : Closed after initial enquiries
Decision date : 31 Mar 2015
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Mr B’s complaint about damage caused to his vehicle by a bollard. This is because it is reasonable to expect Mr B to pursue a court remedy.
- The complainant, whom I refer to as Mr B, says the Council was negligent in failing to warn motorists of a repositioned bollard in the carriageway. Mr B says his car was damaged as a result, which will cost him over £350 to repair.
The Ombudsman’s role and powers
- 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 Mr B’s complaint to the Ombudsman. I also gave Mr B the opportunity to comment on a draft version of this statement.
What I found
- If Mr B believes the Council has been negligent he can pursue a claim for damages against it in court. For that reason his complaint is outside the jurisdiction of the Ombudsman.
- I have discretion to investigate the complaint even though Mr B 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 what damages must be paid if the Council has been negligent. The Ombudsman has no powers to enforce such an award.
- For these reasons, it seems to me reasonable that Mr B should pursue legal action if he believes the Council is at fault, and so I will not exercise discretion to investigate the complaint.
- The Ombudsman has no jurisdiction to investigate Mr B’s complaint because it is reasonable to expect him to pursue a court remedy.
Investigator's decision on behalf of the Ombudsman