Summary: We will not investigate Mr X’s complaint about the Council’s decision to refuse his claim for damages after his car hit several potholes. This is because this is a complaint about negligence which is a legal matter for the courts to consider and decide.

The complaint

1. The complainant, Mr X, complains about the Council’s decision to refuse his claim for damages after his car hit three potholes.

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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)

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How I considered this complaint

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

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My assessment

7. Mr X submitted a claim for damages to the Council after his car was damaged when it hit three potholes in a single journey.
8. The Council has considered Mr X’s claim. It denied liability and set out its defence against a claim of negligence in its response.
9. Mr X says the Council did not fully consider his claim as it only referred to one of the three potholes. He also complains the Council did not respond to all his claim correspondence.
10. We will not investigate Mr X’s complaint. This is because this is a complaint about negligence which is a legal matter for the courts to consider and decide. We cannot decide a negligence claim. Only the courts can decide if an organisation has been negligent and if so whether it should pay damages and at what level. We cannot make such a ruling.
11. It is reasonable to expect Mr X to use his right to make his claim in the courts if he considers the Council is liable for his losses and wants to pursue the matter further. Making a claim in the small claims court is a simple, low cost and accessible process with fees set on a sliding scale depending on the level of the claim. Those on a low income can apply for help with the fees.
12. We will not investigate the issues Mr X raised about the Council not responding to all of his correspondence. We do not consider complaint handling issues in isolation where we are not also considering the substantive matter. This is because it is not a good use of our limited public resources for us to do so.

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Final decision

13. We will not investigate Mr X’s complaint because it is about negligence which is a legal matter for the courts to consider and decide.

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Investigator's decision on behalf of the Ombudsman