Summary: We will not investigate Mr X’s complaint about damage caused to his car by a pothole. This is because this is a complaint about negligence which is a legal matter for the courts to consider and decide and it is reasonable to expect Mr X to pursue his claim in the courts.

The complaint

1. The complainant, whom I shall call Mr X, complains his car was damaged by a pothole and the Council has refused his claim for damages.

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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 do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
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 the complainant.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mr X made a claim for damages to the Council after his car was damaged by a pothole.
9. The Council considered Mr X’s claim. It denied liability and set out its defence against a claim of negligence in its response to Mr X.
10. This is not a complaint we will investigate. This is because this is a complaint about negligence which is a legal matter for the courts, rather than the Ombudsman, to consider and decide. We cannot decide a negligence claim or make a ruling on whether the Council was negligent. Only the courts can do this and, if it decides the Council is liable, decide whether it should award any damages Mr X seeks.
11. It is reasonable to expect Mr X to use his right to pursue his claim in the courts. Making a claim in the small claims court is a simple, accessible process with low fees on a sliding scale depending on the level of the monetary claim. Those on a low income can also apply for help with the fees.
12. Mr X also complains the Council has not responded to his freedom of information request. This is a matter best considered by the Information Commissioner’s Office (ICO) which is set up to consider complaints about such matters.

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Final decision

13. We will not investigate Mr X’s complaint because it is a complaint about negligence which is a legal matter for the courts to decide and it is reasonable to expect Mr X to use his right to pursue his claim in court. Mr X’s complaint about the Council’s failure to respond to his freedom of information request is best considered by the ICO.

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Investigator's decision on behalf of the Ombudsman