Summary: We will not investigate this complaint about damage to Mrs X’s car and the Council’s response to her claim. This is because it is reasonable to expect her to go to court.

The complaint

1. Mrs X complains about the Council’s decision to refuse her claim for damages to her car when it struck a pothole. She seeks reimbursement of the repair costs.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council’s insurance officers rejected liability for Mrs X’s claim. The Council said it had identified the pothole and raised repair works before the incident occurred. It denied negligence. The Council also said it had an appropriate system of inspection and maintenance as required by section 58 of the Highways Act 1980 and it could rely on that legal defence. The Council advised Mrs X to seek independent legal advice.
7. We will not investigate. This is because it is reasonable to expect Mrs X to take her claim to court. A court can consider the evidence from both parties, legally determine if the Council was negligent, also determine whether the statutory defence applies and, if appropriate, award compensation. The Ombudsman has no powers to legally determine damages claim nor compel Councils to pay compensation.

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Final decision

8. We will not investigate Mrs X’s complaint because it reasonable to expect her to go to court.

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Investigator's decision on behalf of the Ombudsman