Summary: The Ombudsman will not investigate Mrs X’s complaint about damage to her car from the public highway. This is because it is reasonable for her to seek compensation through the courts.

The complaint

1. Mrs X complains a missing reflector post on the public highway led to an accident causing damage to her car. Mrs X wants the Council to pay for the damage. Mrs X is also unhappy with how the Council has dealt with her complaint.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered Mrs X’s complaint to the Ombudsman and the information she provided. I also gave Mrs X the opportunity to comment on a draft statement before issuing a final decision on her complaint.

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What I found

5. Mrs X says a missing reflector post on the public highway led to an accident causing damage to her car. Mrs X wants the Council to pay for the damage, but it has rejected her claim.
6. 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.
7. Now the Council has rejected Mrs X’s claim, it is open to her to make a claim in court. I consider it would be reasonable for her 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 Mrs 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 Mrs X’s complaint
8. Mrs X is also unhappy with how the Council has dealt with her complaint. But we will not look at a council’s complaint handling if we are not going to look at the substantive issue complained about. This applies here.

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Final decision

9. The Ombudsman will not investigate Mrs X’s complaint. This is because it is reasonable for her to seek compensation through the courts.

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Investigator's decision on behalf of the Ombudsman