Summary: We will not investigate this complaint about the Council’s failure to determine a claim for damage to Miss X’s vehicle caused by a highway defect. It is reasonable for her to pursue a remedy for negligence in the civil courts.

The complaint

1. Miss X complained about the Council’s failure to accept liability for damage to her car and to settle her insurance claim against it.

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The Ombudsman’s role and powers

2. 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)

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How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Miss X suffered damage to her car from a pothole in the highway surface. She submitted a claim against the Council’s public liability insurance in January and complained to us when she had not received a satisfactory outcome within 90 days which was the timescale provided by the Council.
6. We made enquiries of the Council and it has confirmed that her claim has been determined and liability has been denied. The Council says the claim did not meet the statutory defence provided by s.58 of the Highways Act 1980 and advised Miss X that she retained the right to seek a civil remedy in the courts if she still believes it was negligent.
7. The Council delayed deciding the claim beyond the 90 days’ timescale it provided but the outcome was negative in this case so delay did not cause any additional injustice. Miss X could have sought a remedy in the courts earlier if she believed it was failing to decide her claim.
8. We will not normally investigate complaints about damage to property or injury to people arising from claims of negligence.
9. Negligence claims and interpreting the law around legal torts are generally best decided by a court. Only a court can decide whether the problem should have been dealt with by the council before it caused harm or if the council is liable to pay “damages” for the loss or injury someone has suffered.

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Final decision

10. We will not investigate this complaint about the Council’s failure to determine a claim for damage to Miss X’s vehicle caused by a highway defect. It is reasonable for her to pursue a remedy for negligence in the civil courts.

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Investigator's decision on behalf of the Ombudsman