Summary: We will not investigate Mr B’s complaint about damage to his car caused 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 that his car was damaged after hitting a large pothole which the Council had failed to repair. Mr B says the Council wrongly refused his compensation claim for the damage to his car. Mr B says the Council has only relied on the statutory defence without giving proper consideration to the details of his claim. Mr B also complains the Council did not provide all the information he requested under the Freedom of Information Act. Mr B would like the Council to pay him compensation for his repair costs.

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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 Act says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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

6. I considered information provided by Mr B.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mr B’s complaint is that his car was damaged because of the Council’s failure to maintain a road it is responsible for. In effect, Mr B’s complaint is that the Council has been negligent.
9. 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. Only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
10. In addition, 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. There is a dispute between Mr B and the Council about whether the Council is entitled to rely on this statutory defence in response to Mr B’s claim. This is for the courts to decide.
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 Mr B’s position to seek a remedy in the courts, directly or through his insurers. I do not consider there is any exceptional reason why Mr B cannot do this. So, we will not investigate Mr B’s complaint about the damage to his car.
12. Mr B also complains that the Council did not provide all the information he requested under the Freedom of Information Act. We will not investigate this part of Mr B’s complaint. This is because Mr B may complain to the Information Commissioner, who is in the best position to decide complaints about freedom of information. Also, if needed, I find it is reasonable for Mr B to appeal a decision of the Information Commissioner to the first tier tribunal.

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Final decision

13. We will not investigate Mr B’s complaint because it is reasonable for him to pursue his compensation claim by taking the Council to court. Also, it is reasonable for Mr B to complain to the Information Commissioner about the Council’s response to his request for information.

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Investigator's decision on behalf of the Ombudsman