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

The complaint

1. Mr B complains his car was damaged by a pothole which the Council had failed to repair. Mr B says the Council was aware of this pothole before the incident but took too long to repair it. Mr B complains the Council has refused his compensation claim and wrongly says he was aware of this pothole before the incident. Mr B also says the Council took too long to decide his claim. Mr B would like the Council to reconsider this decision and pay him compensation.

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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 Mr B.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr B complains his car was damaged because the Council failed to maintain a road it is responsible for. So, in effect, Mr B’s complaint is that the Council has been negligent.
7. The Council has considered Mr B’s claim for compensation but did not accept the Council is liable for the damage to his car. Mr B may pursue his 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. A local highways authority has a statutory defence if it can show it could not reasonably have been expected to put right any defects before the incident happened.
10. Only the court can decide if the Council has been negligent and whether the Council is entitled to rely on this statutory defence, including whether the Council took a reasonable amount of time to repair this defect.
11. In addition, only a court can decide if an organisation should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
12. 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.
13. Mr B also complains the Council took too long to decide his claim. But, an investigation solely into the Council’s handling of Mr B’s compensation claim is not justified. Because we are not investigating the substantive matter complained about, an investigation is unlikely to achieve a meaningful outcome for Mr B or be a good use of our limited resources.
14. So, we will not investigate this complaint.

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Final decision

15. 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.

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Investigator's decision on behalf of the Ombudsman