Summary: We will not investigate Miss B’s complaint that her car was damaged due to the Council’s failure to repair a pothole. This is because it is reasonable for Miss B to pursue her claim at court. An investigation solely into the Council’s delay deciding the claim is not justified.

The complaint

1. Miss B complains her car was damaged after hitting a pothole on a Council road. Miss B says the Council delayed deciding her claim and has wrongly not taken any responsibility for the damage. Miss B would like the Council to pay her compensation for the required repairs and the stress she has suffered because of this incident.

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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)

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How I considered this complaint

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

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My assessment

6. Miss B complains her car was damaged because the Council failed to maintain a road it is responsible for. So, in effect, Miss B’s complaint is that the Council has been negligent.
7. The Council’s insurers have considered Miss B’s claim for compensation but did not accept the Council is liable for the damage to her car. Miss B may pursue her claim by taking the Council to court.
8. 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.
9. The Council has relied on the statutory defence that it could not reasonably have been expected to repair this pothole before the incident happened. Only the court can decide if the Council has been negligent and whether the Council is entitled to rely on this statutory defence.
10. In addition, 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.
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 Miss B’s position to seek a remedy in the courts, directly or through her insurers. I do not consider there is any exceptional reason why Miss B cannot do this. The initial fee for making a court claim online is modest and help with fees is available for people on a low income.
12. So, we will not investigate Miss B’s complaint about the Council refusing her compensation claim.
13. Miss B also complains the Council’s insurers took too long to decide her compensation claim. Miss B has received the Council’s decision on her claim and the next step is for her to take the Council to court. An investigation into the Council’s delay would not change the Council’s decision and is unlikely to achieve a meaningful outcome or be a good use of our resources. So, an investigation is not justified.

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Final decision

14. We will not investigate Miss B’s complaint because it is reasonable for her to take the Council to court.

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Investigator's decision on behalf of the Ombudsman