Summary: We will not investigate this complaint about a claim for damage to Mrs X’s car. Mrs X has an alternative legal remedy, to pursue a claim of negligence through the courts. Only the courts can decide whether the Council was negligent. It is therefore reasonable to expect Mrs X to use her legal remedy.     

The complaint

1. Mrs X complains her car was damaged by a pothole on a Council-maintained road. Mrs X also says the Council did not properly consider her complaint about this.
2. Mrs X says this caused distress and caused her to have to pay for the repair to her car.
3. Mrs X wants the Council to properly consider her complaint and repay her for the cost of repairing her car.

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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)

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How I considered this complaint

6. I considered information provided by Mrs X.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. We consider our powers on what we could achieve as part of our consideration of whether an alternative remedy exists and whether it is reasonable for a person to use it.
9. Negligence claims and interpreting the law around civil liability are generally best decided by a court where the Council does not accept insurance liability. Only a court can decide whether the problem should have been dealt with by the Council before it caused damage to a person’s property, or if it is liable to pay damages for a person’s loss.
10. We will not investigate Mrs X’s complaint. We cannot determine liability, nor instruct the Council to repay her for the cost of the damage. Only a court can.
11. Additionally, we will not investigate Mrs X’s complaint about the Council’s complaint handling. It is not a good use of public resources to investigate complaints about complaint procedures if we decide not to deal with the substantive issue.

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Final decision

12. We will not investigate Mrs X’s complaint because it is reasonable to expect her to take the matter to court to decide liability and pursue suitable recompense.

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Investigator's decision on behalf of the Ombudsman