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

The complaint

1. The complainant, whom I shall call Mrs X, complains about damage to her car caused by an ‘overhanging tree stump’ which she says obscured her view of the road.

Back to top

The Ombudsman’s role and powers

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

Back to top

How I considered this complaint

6. 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.

Back to top

What I found

7. Mrs X says that in 2018 an overhanging tree stump on the public highway led to her car being damaged. Mrs X wants the Council to pay for the damage, but it has so far refused.
8. 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 good reasons to do so. I do not consider that to be the case here. I see no reason why Mrs X could not have complained much earlier, and so the exception at paragraph 3 applies to her complaint. In reaching this decision I have taken into account the point I make below.
9. Even if Mrs X’s complaint was not late, we would not investigate. This is because the role of the Ombudsman is to consider complaints about administrative fault. We cannot establish liability in complaints involving negligence and damage to property. Such claims are for the Council’s insurers and, ultimately, for the courts.
10. If the Council’s insurers reject a formal claim from Mrs X, 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. 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 the right of the Council to use that defence by investigating Mrs X’s complaint.

Back to top

Final decision

11. The Ombudsman will not investigate Mrs X’s complaint. This is because the complaint is late, and it is reasonable for Mrs X to use the legal remedy available to her.

Back to top

Investigator's decision on behalf of the Ombudsman