Summary: We will not investigate this complaint about a claim for damage to Mr X’s vehicle. Mr 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 Mr X to use his legal remedy.     

The complaint

1. Mr X complains his vehicle was damaged by a pothole on a Council-maintained road. Mr X also says there was unacceptable delay in the Council considering his claim for the damage and says its complaint handling about the matter was poor.
2. Mr X says this caused frustration and financial loss.
3. Mr X wants the Council to apologise, review its processes and repay him for the damage to his vehicle.

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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 Mr 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 has not accepted 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 Mr X’s complaint. We cannot determine liability, nor instruct the Council to repay him for the cost of the damage. Only a court can.
11. Additionally, we will not investigate Mr 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 Mr X’s complaint because only the courts can decide if the Council was negligent, so it is reasonable to expect him to use his legal remedy.

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Investigator's decision on behalf of the Ombudsman