Summary: We will not investigate this complaint about a claim for damage to Mr X’s car. Mr X has an alternative legal remedy to pursue a claim of negligence through the courts. For the rest, it is not a good use of resources to investigate complaints about complaint procedures if we decide not to investigate the substantive issue.

The complaint

1. Mr X complained about delay in the Council responding to his claim for damage to his car by a pothole on a council-maintained highway. Mr X also complained about the Council’s communication and complaint handling about the matter.
2. Mr X said this caused distress, time and trouble.
3. Mr X wants the Council to apologise, respond to his claim and complaint, and provide a symbolic financial remedy to recognise his time and trouble in chasing the matter.

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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)
6. We will not usually investigate complaint handling if we are not investigating the rest of the complaint. This is because there is not usually enough injustice to justify us doing so. We collect information about particularly poor complaint handling practice and report this back to organisations. (Local Government Act 1974, section 24A(6), section 34B(8))

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How I considered this complaint

7. I considered information provided by Mr X.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. 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.
10. Negligence claims and interpreting the law around civil liability are best decided by a court where the Council does not accept insurance liability or does not respond to a claim. 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.
11. I recognise Mr X is not asking us to decide liability. However, where the Council has not responded to the claim it is reasonable to expect Mr X to take the matter to court to decide liability. We will therefore not investigate this complaint.
12. We will also 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 investigate the substantive issue.

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Final decision

13. We will not investigate Mr X’s complaint because it is reasonable for him to take the matter to court. For the rest, it is not a good use of public resources to investigate complaints about complaint procedures if we decide not to investigate the substantive issue.

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Investigator's decision on behalf of the Ombudsman