Summary: The Ombudsman will not investigate Mr X’s late complaint about damage to his car from a pothole. This is because it is reasonable for him to seek compensation through the courts.

The complaint

1. The complainant, whom I shall call Mr X, complains about damage to his car from a pothole.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
4. 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)

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How I considered this complaint

5. I considered Mr X’s complaint to the Ombudsman and the information he provided. I also gave Mr X the opportunity to comment on a draft statement before issuing a final decision on his complaint.

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What I found

6. Mr X says in March 2018 a pothole on the public highway damaged his car. Mr X says he had previously reported the pothole to the Council - as had another member of the public. The Council rejected Mr X’s claim for damages in May 2018. Mr X has pursued his concerns through the Council’s corporate complaints process. The Council did not uphold his complaints.
7. The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint, unless there are clear and compelling reasons to do so. I do not consider that to be the case here. I see no reason Mr X could not have complained to the Ombudsman earlier. The exclusion at paragraph 2 therefore applies. In reaching this decision I have taken into account the point I make below.
8. The role of the Ombudsman is to consider complaints about administrative fault. We cannot establish liability in complaints involving damage to property. Claims for damage to property are a matter for the Council’s insurers and, ultimately, for the courts.
9. Now the Council has rejected Mr X’s claim, it is open to him to make a claim in court. I consider it would be reasonable for him to do so. This is because only the court can decide if the Council has been negligent. The court can decide what damages, if any, the Council should pay Mr X. Also, Section 58 of the Highways Act 1980, gives a council the right to put forward in court a defence against claims for damage from the condition of the highway. The Ombudsman will not remove that right by investigating Mr X’s complaint

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Final decision

10. The Ombudsman will not investigate Mr X’s complaint. This is because there is a legal remedy available to Mr X, and it is reasonable for him to take the matter to court. Only the court can give Mr X the outcome he wants.

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Investigator's decision on behalf of the Ombudsman