Lincolnshire County Council (20 008 681)
Category : Transport and highways > Highway repair and maintenance
Decision : Closed after initial enquiries
Decision date : 08 Jan 2021
The Ombudsman's final decision:
Summary: We will not investigate Mr X’s complaint about damage to his car from a pothole. This is because it is reasonable for him to seek compensation through the courts.
The complaint
- The complainant, whom I shall call Mr X, complains about damage to his car from a pothole. Mr X wants the Council to pay for the damage. Mr X is unhappy with the way his claim for damages and complaint have been handled.
The Ombudsman’s role and powers
- 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:
- it is unlikely further investigation will lead to a different outcome, or
- we cannot achieve the outcome someone wants, or
- there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
- 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)
How I considered this complaint
- I considered Mr X’s complaint to the Ombudsman and the information he provided. I also gave Mr X the opportunity to comment on a draft statement before issuing a final decision on his complaint.
What I found
- Mr X says a pothole on the public highway damaged his car. Mr X wants the Council to pay for the damage.
- Our role 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.
- If the Council rejects Mr X’s formal claim for damages, it is open to him to make a claim in court. I consider it would be reasonable for him 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. We will not remove the right of the Council to use that defence by investigating Mr X’s complaint.
- Mr X is also unhappy with the way the Council has dealt with his claim for damages and complaint. Mr X complains about delay and says a member of staff left an inappropriate message on his answering machine – which the Council denies. It is difficult to see what more we could add to the Council’s response and we will not normally investigate complaint handling if we are not going to investigate the matter which led to the original complaint. This applies here.
Final decision
- The Ombudsman will not investigate Mr X’s complaint. This is because it is reasonable for Mr X to use the legal remedy available to him.
Investigator's decision on behalf of the Ombudsman