Summary: We will not investigate Mr X’s claim for damages to his car. This is because it is reasonable to expect the complainant to go to court. And, it does not meet the tests in our Assessment Code on how we decide which complaints to investigate.

The complaint

1. Mr X holds the Council responsible for damage caused to his car by a defective speed bump. Mr X would like the Council to reimburse him for the repair costs of £325.
2. The Council rejected Mr X’s claim. Mr X complains about the reasons for its decision. He says the Council failed to provide any evidence-based justification for its decision; lost safety records concerning the speed bump; and, gave conflicting information on signage requirements.
3. Mr X complains about the Council’s handling of his claim. He says the Council initially incorrectly told him another council was responsible for handling the claim. He says this caused a delay of seven months. Also, he complains the Council said he could make a Freedom of Information request for documents that the Council already said did not exist.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

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 importantly, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
10. 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.
11. Our role is to consider complaints of administrative fault. Negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
12. Mr X has received the Council’s decision on his compensation claim. Mr X may pursue his claim by taking the Council to court.
13. The courts are in the best position to decide this matter including how the Council inspected this highway and assessed whether there were any defects for repair.
14. Only a court can decide if the Council was negligent including whether the Council is entitled to rely on the statutory defence that it followed a reasonable system of inspection and repair. Also, unlike the courts, we have no powers to enforce an award of damages.
15. So, I would usually expect someone in Mr X’s position to seek a remedy in the courts. I find it is reasonable for Mr X to do this and the initial fee for making a claim is relatively modest. Mr X can also seek legal advice if needed.
16. So, we will not investigate this complaint.
17. It is not a good use of our limited resources to investigate the Council’s claims or complaint handling as a standalone issue. Any separable injustice is not significant enough to justify our involvement, particularly as Mr X has received the Council’s decision about his claim. For these reasons, we will not investigate.

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Final decision

18. We will not investigate this complaint. This is because it is reasonable to expect Mr X to go to court to decide the Council’s liability for his claim.

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Investigator's decision on behalf of the Ombudsman