Summary: We will not investigate this complaint about damage to a car and a dispute about whether the Council is responsible for the road where the damage occurred. This is because it is reasonable for the complainant to use the legal remedy available to them.

The complaint

1. Mr X complains his partner’s car was damaged when it hit a pothole. Mr X wants the Council to pay for the damage. The Council has so far refused the claim and says it is not responsible for the road where the damage occurred. Mr X says he previously raised the issue of responsibility for the road in 2018. This was due to issues including a lack of lighting and poor drainage.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. 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)
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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. We will not start an investigation into Mr X’s complaint. This is because the damage to Mr X’s partner’s car is effectively a claim the Council has been negligent. Such matters are for insurers, and the courts, not the Ombudsman. If the Council refuses Mr X’s request for damages, then he can make a claim in court.
8. As part of the process the court can determine whether the Council is responsible for the road in question. The Ombudsman cannot decide what is a public or a private highway. Only the courts can give Mr X a decision on who is responsible for the maintenance of the road.
9. If the court found the Council was responsible for the road where the damage occurred, it can then decide if the Council has been negligent. It can decide what damages, if any, the Council should pay. These are not decisions the Ombudsman can take, and it is therefore reasonable for Mr X to use the legal remedy available to him.
10. The issues Mr X raised in 2018 are a late complaint as we normally expect people to complain to us within 12 months of them becoming aware of a problem. We do not exercise our discretion to consider a late complaint unless there are clear and compelling reasons to do so. I do not consider that to be the case here. But even if this part of the complaint was not late, we would not investigate. This is because the issues are inextricably linked to responsibility for maintaining the road, and as explained above, this is not an issue we could decide.

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Final decision

11. We will not investigate this complaint because it is reasonable for the complainant to use the legal remedy available to them.

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Investigator's decision on behalf of the Ombudsman