Lancashire County Council (20 004 005)
Category : Transport and highways > Highway repair and maintenance
Decision : Closed after initial enquiries
Decision date : 06 Oct 2020
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Miss B’s complaint about damage to her shop because of a road disrepair. This is because it is reasonable for Miss B to use the legal remedy available to her in the courts.
The complaint
- Miss B says the pothole in front of her shop caused damage to her shop.
- Miss B also complaints about the way the Council dealt with her complaint.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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)
- The Ombudsman will not normally investigate a Council’s complaint handling if we are unable to deal with the substantive matter.
How I considered this complaint
- I have considered what Miss B says in her complaint. I issued Miss B a draft decision and invited comments before I made my final decision.
What I found
- Miss B says a pothole in front of her shop caused damage to her shop door and walls.
- Miss B also complains about the way the Council has dealt with her concerns. She says she complained to the Council many times but the Council told her the matter she complains about is an act of god and if Miss B remains dissatisfied she could seek legal advice.
- Miss B says this has caused her distress and loss of customers. Miss B says she has replastered the front of her shop and bought new doors. Miss B wants the Council to refund her. Further to this Miss B says the Council has now repaired the road she complains about.
- The Ombudsman does not normally investigate complaints when someone could take the matter to court. If Miss B considers the Council has not kept the road in repair before now, she can seek a remedy through the courts. It would be for the court to decide if the Council is negligent and is liable to pay damages. In addition, a highway authority has a statutory right under Section 58 of Highways Act 1980 to put forward a defence in court against a damage claim. If the Ombudsman were to investigate, we would be denying the Council its right to defend itself in court against the claim. So, we consider it reasonable to expect Miss B to exercise her right to seek a remedy in the courts.
- The Ombudsman does not normally investigate a Council’s complaint handling if we are not investigating the substantive matter.
Final decision
- The Ombudsman will not investigate this complaint because it is reasonable for Miss B to use the legal remedy available to her in the courts.
Investigator's decision on behalf of the Ombudsman