Summary: We will not investigate this complaint about a claim for damage to the complainant’s motor vehicle. This is because the complainant 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 them to use their legal remedy.

The complaint

1. X complains that the Council failed to properly deal with an insurance claim for damage to their vehicle caused by a pothole. X says the Council delayed considering the claim, failed to respond to correspondence and failed to provide X with evidence it used to reject the claim. X also complains about how the Council dealt with their complaints about these matters.

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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)
3. 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. 
4. 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

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. I will not investigate X’s complaint about the Council’s decision to reject the claim. This is because X has an alternative legal remedy through the courts. Only the courts can achieve the outcome they are looking for, so it is reasonable to expect them to use this remedy.
8. I will not investigate X’s complaint about delay and poor communication by the Council. This is because this alone has not caused a significant enough injustice to warrant investigation by the Ombudsman.
9. It is not a good use of public resources to investigate complaints about complaint procedures if we are unable to deal with the substantive issue.

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Final decision

10. We will not investigate X’s complaint because it reasonable for them to use the court remedy available.

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Investigator's decision on behalf of the Ombudsman