Summary: We will not investigate Ms C’s complaint that her car was damaged due to the Council’s failure to repair a pothole. This is because it is reasonable for Ms C to pursue her compensation claim by taking the Council to court.

The complaint

1. The complainant, who I will refer to as Ms C, complains that her car was damaged after hitting a pothole which the Council had failed to repair. Ms C complains the Council has wrongly refused to accept liability for the damage to her car. Ms C would like the Council to pay her compensation for the repair costs she paid. Ms C would also like the Council to provide information she requested under the Freedom of Information Act about claims for compensation made by other motorists.

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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. The Act 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. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

5. I considered information provided by Ms C.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Ms C’s complaint is that her car was damaged because of Council negligence.
8. Deciding about whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings.
9. The level of highway maintenance, frequency of inspections, and threshold for repairs is not set out in law and is open to interpretation. The Council has a statutory defence if it can show it could not reasonably have been expected to put right any defects before the incident happened.
10. In addition, only a court can decide if an organisation has been negligent and so should pay damages.
11. I cannot decide whether the Council has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Ms C’s position to seek a remedy in the courts, directly or through her insurers. I do not consider there is any exceptional reason why Ms C cannot do this. So, we will not investigate Ms C’s complaint about damage to her car.
12. We will not investigate Ms C’s complaint about the Council’s response to her freedom of information request. This is because Ms C has complained to the Information Commissioner, who is in the best position to consider the matter. Also, if needed, it is reasonable for Ms C to appeal a decision notice of the Information Commissioner to the information rights tribunal.

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Final decision

13. We will not investigate Ms C’s complaint because it is reasonable for her to pursue her compensation claim at court.

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Investigator's decision on behalf of the Ombudsman