Summary: We will not investigate Mr B’s complaint that his car was damaged by a pothole. This is because it is reasonable for Mr B to pursue his compensation claim by taking the Council to court.

The complaint

1. The complainant, who I will refer to as Mr B, complains his car was damaged by a pothole which the Council failed to repair. Mr B says the Council has wrongly refused his claim for compensation. Mr B would like the Council to reimburse him for his repair costs.

Back to top

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 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)

Back to top

How I considered this complaint

4. I considered information provided by Mr B.
5. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

6. Mr B’s complaint is that his car was damaged because the Council failed to maintain a road it is responsible for. In effect, Mr B’s complaint is that the damage was caused by Council negligence.
7. Deciding 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. 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. The Council has relied on this statutory defence in response to Mr B’s claim for compensation.
8. Only a court can decide if the Council has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
9. 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 Mr B’s position to seek a remedy in the courts, directly or through his insurers.
10. I do not consider there is any exceptional reason why Mr B cannot do this. So, we will not investigate this complaint.

Back to top

Final decision

11. We will not investigate Mr B’s complaint because it is reasonable for him to take the Council to court.

Back to top

Investigator's decision on behalf of the Ombudsman