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 complained the Council was liable for damage to their motor vehicle because of the poor state of the highway. X said the Council did not respond to their claim for damages and has not responded to a complaint they made, about the same matter. X said this has had a financial impact on them.

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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 I considered the Ombudsman’s Assessment Code.

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My assessment

4. X’s complaint is mainly that the organisation has been negligent because it is responsible for the highway. Deciding about whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings. In addition, only a court can decide if an organisation has been negligent and so should pay damages.
5. I will not investigate X’s complaint. I cannot decide whether an organisation has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in X’s position to seek a remedy in the courts, directly or through their insurers.
6. Nor will I investigate a complaint about poor communication. As a publicly funded body we must be careful how we use our resources. We do not investigate complaints about complaint handling faults, in isolation, where we decide not to investigate the main complaint issue. This is because it is not a good use of public resources

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Final decision

7. We will not investigate X’s complaint because they have an alternative legal remedy, through the courts and because only the courts can achieve the outcome they are looking for, it is reasonable to expect them to use this remedy.  

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Investigator's decision on behalf of the Ombudsman