Summary: We will not investigate Mrs B’s complaint about the Council’s consideration of her compensation claim for vehicle damage. This is because it is reasonable for Mrs B to pursue her claim at court, which is in the best position to decide the matters complained about.

The complaint

1. Mrs B complains her compensation claim was rejected without a fair and transparent review after her car was damaged by a large pothole which the Council had failed to repair. Mrs B says there is maladministration in the Council’s inspection regime and record-keeping, and the Council has failed to investigate or explain conflicting evidence within its highway records. Mrs B also says the Council has refused to engage with her concerns through a complaints process and she has been left without a meaningful way to challenge the reliability of the Council’s inspections.

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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. The Council as a local highways authority has a statutory duty to maintain adopted streets. The Council is expected to routinely monitor the state of highways and carry out repairs where necessary. But importantly, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
7. We do not normally investigate complaints about vehicle damage caused by highway disrepair. This is because in effect such complaints are that an organisation has been negligent. Our role is to consider complaints of administrative fault. Negligence claims are best decided by an organisation’s insurers, and if needed, the courts. Only the courts can decide if an organisation was negligent, and if so, make an order for damages.
8. The issues Mrs B complains about concern the Council’s highway inspection regime and the strength of its records used to support its decision. These matters go to the core of the Council’s insurer’s decision on Mrs B’s compensation claim. We could not undertake a meaningful investigation of these issues in isolation and without inevitably forming a view on the Council’s decision on liability, which is for the courts to decide.
9. So, I would usually expect someone in Mrs B’s position to seek a remedy in the courts. I find it is reasonable for Mrs B to do this and she has indicated a willingness to take such action if needed.
10. Mrs B also complains the Council has not considered her complaint under its complaints procedure.
11. It is not normally a good use of our limited resources to investigate complaints about complaints procedures if we are not investigating the substantive matter complained about.
12. The Council’s insurer has reviewed its decision on Mrs B’s claim and has responded to further comments Mrs B made in response to this review decision. In such circumstances, we would not normally criticise a local authority for not accepting a complaint under a council’s corporate complaints procedure. So, an investigation is not justified.

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Final decision

13. 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