Summary: The Ombudsman will not investigate Mr B’s complaint about damage to his car and the information the Council requested when he made a claim. The complaint is late. As the courts are better placed to decide if the Council is liable to Mr B for the damage he claims, there are no good reasons for the Ombudsman to exercise his discretion and now investigate.

The complaint

1. The complainant, whom I shall call Mr B, says his tyre and wheel were damaged when he hit a pothole on the road in April 2018. Mr B also complains the Council made the process of making a claim too difficult. He wants the Council to reimburse the cost of replacing his tyre and wheel.
2. Mr B also complains about the way the Council responded to his complaint, saying its final complaint response was offensive.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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

6. I have considered the information Mr B provided when he made his complaint and the Ombudsman’s role and powers. I sent a draft decision to Mr B, discussed the complaint with him and considered the comments he made in reply before I made my final decision.

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What I found

7. Mr B hit the pothole in April 2018. As more than 12 months have passed since the incident, the complaint is late and the restriction in paragraph 3 applies.
8. I have considered whether the Ombudsman should exercise his discretion and now investigate this complaint. There are no good reasons to do so. This is because even if Mr B had brought his complaint to us sooner, the Ombudsman would not investigate. Whether the Council has failed to properly maintain the highway and is liable to Mr B for the damage to his car is a matter only the courts can decide.
9. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary.
10. Section 58 of the Highways Act 1980 gives a highway authority the right to put forward in court a special defence against claims for loss or damage resulting from the condition of the highway.
11. The Ombudsman cannot normally investigate a complaint when someone can take the matter to court. I do not consider there are any reasons why the Ombudsman should exercise his discretion and investigate Mr B’s complaint. This is because whether the Council is liable for the damage to Mr B’s car is a legal issue. It requires interpretation of the law to determine whether the Council fulfilled its duty under the Highways Act and whether it can rely on the defence provided by Section 58. This is not a matter the Ombudsman can decide.
12. Mr B complains the Council asked for an onerous amount of information when he tried to make a claim. This information was proof of ownership of the vehicle and evidence it was taxed and had a valid MOT. In response to Mr B’s complaint, the Council explained he had not requested any assistance with making a claim, but as it is a legal process that can end up in the courts it is for the claimant to provide evidence to support their claim. Further consideration of this part of Mr B’s complaint would be unlikely to find fault by the Council.
13. It is reasonable to expect Mr B to use, or to have used his right of remedy in the courts. Only the courts can decide if the Council has failed to properly maintain the highway and is liable for Mr B’s losses. There is a simple, low cost procedure open to anyone to make a money claim through the courts. Or Mr B could consider using a ‘no win no fee’ solicitor or checking if he has legal expenses insurance that would cover such a claim.
14. The Council sent its final response to Mr B’s complaint in July 2018. Mr B says he did not receive this until September 2018 and he found the tone and content offensive.
15. The Ombudsman will not investigate this complaint. The Ombudsman has a general discretion whether to start an investigation and it is not a good use of public resources to investigate complaints about complaint procedures and complaint responses if we are not investigating the substantive issue.

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Final decision

16. The Ombudsman will not investigate this complaint. This is because the complaint is late. As the courts are better placed to decide if the Council is liable to Mr B for the damage he claims, there are no good reasons for the Ombudsman to exercise his discretion and now investigate.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman