Summary: Mrs X complained about the Council’s handling of her claim for damage to her car when it suffered damage from a pothole in the public highway. The Ombudsman should not exercise his discretion to investigate this complaint. This is because it concerns damage to property and liability can only be determined by insurers or the courts. It is reasonable for Mrs X to take the matter to the small claims court if she is dissatisfied with the outcome of the insurance claim.

The complaint

1. Mrs X’s car suffered damage to a wheel and tyre following impact with a pothole in the highway. She submitted a claim to the Council, but she was not satisfied with the offer made by its insurers or the time it took to make the offer.

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The Ombudsman’s role and powers

2. 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

3. I have considered all the information which Mrs X submitted with her complaint. Mrs X has commented on a draft copy of my decision.

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What I found

4. Mrs X says her car was damaged after she hit a pothole in the public highway. She made a claim against the Council for the damage. The Council ‘s insurers initially rejected the claim.
5. Following further contact from Mrs X the Council agreed through its insurers to pay the costs minus an amount for betterment and wear and tear. The offer was made on a without prejudice to liability basis. Mrs X says the full amount should have been paid and that the process took up to six months which was too long even considering the COVID-19 disruption to Council business.
6. The Ombudsman will not investigate complaints about damage to property or personal injury caused by alleged negligence by councils. These are legal claims about liability for negligence and can only be determined by insurers or the courts. If Mrs X disagrees with the offer made by the Council, she could pursue the matter in the small claims court. It is not unusual for claims to take several months for insurers to decide and in this case the time taken to issue the initial decision was not unreasonable.

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Final decision

7. The Ombudsman should not exercise his discretion to investigate this complaint. This is because it concerns damage to property and liability can only be determined by insurers or the courts. It is reasonable for Mrs X to take the matter to the small claims court if she is dissatisfied with the outcome of the insurance claim.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman