Summary: We will not investigate Mrs X’s claim for damages to her car. This is because it does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable to expect Mrs X to take her claim to court. And we will not consider the administrative issues around the handling of the complaint as these do not represent a significant injustice.

The complaint

1. In summary, Mrs X says her car was damaged when she drove over a recently resurfaced road. Mrs X says the Council’s contractors have omitted details of the recent work when it rejected her insurance claim. She says it failed to respond to her when she pointed this out.
2. Mrs X also complains about the length of time taken to deal with her claim. She would like her claim reviewed by a senior person and settled in full.

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The Ombudsman’s role and powers

3. 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)
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. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or continue an investigation if we decide:

• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

7. When a council commissions or arranges for another organisation to provide services we treat actions taken by or on behalf of that organisation as actions taken on behalf of the council. In this case Kier are contracted by the Council to inspect and maintain roads and footpaths.
8. The Council has denied it is liable for the damage caused to Mrs X’s car. The Council considers its maintenance and inspection regime is satisfactory.
9. The Council as a local highways authority has a statutory duty to maintain roads. The Council is expected to routinely monitor the state of highways and carry out repairs where necessary. But, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
10. We will not investigate. We would expect Mrs X to pursue her claim via the courts. This is because it is essentially a negligence claim, and only the courts can decide if the Council is liable for the claimed damage. Further, unlike the Ombudsman, the courts have the power to award damages against the Council. So, we will not investigate as it is reasonable to expect Mrs X to take her claim to court.
11. With respect to the delay in determining Mrs X’s claim and lack of a review by a senior officer, while I understand Mrs X has found this frustrating, we will not investigate. This is because it does not represent a significant injustice, and it would not be proportionate to investigate the handling of an insurance claim, when we are not considering the main issues in the claim.

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Final decision

12. I will not investigate. This is because it is reasonable to expect Mrs X to go to court to decide the Council’s liability for her claim. And it is not proportionate to investigate the handling of the claim due to a lack of significant injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman