Summary: We will not investigate Mrs B’s complaint that her car was damaged by a pothole. This is because it is reasonable for Mrs B to pursue her compensation claim at court.

The complaint

1. Mrs B complains the Council wrongly refused her compensation claim after her car was damaged by a pothole which the Council had failed to repair. Mrs B says the Council’s decision did not tell her how she could ask for a review of this decision and the Council delayed providing this information. Also, Mrs B says the Council wrongly advised her the Ombudsman could not get involved with pothole disputes.

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

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My assessment

6. Mrs B complains her car was damaged because the Council failed to maintain a road it is responsible for. So, in effect, Mrs B’s complaint is that the Council has been negligent.
7. The Council has considered Mrs B’s claim for compensation but did not accept the Council is liable for the damage to her car. Mrs 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. 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.
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 Mrs 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 Mrs B cannot do this.
13. An investigation into the Council’s handling of Mrs B’s compensation claim and the advice it provided is not justified. The Council has now explained the review procedure to Mrs B. It is for the Council to decide how this internal review procedure should operate. Also, it would appear the information provided by the Council about the remit of the Ombudsman was broadly correct.
14. So, we will not investigate this complaint.

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Final decision

15. We will not investigate Mrs 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