Summary: We will not investigate this complaint about a claim for damage to Mr X’s motor vehicle. This is because Mr X can pursue a claim of negligence through the courts and only the courts can decide whether the Council was negligent. It is therefore reasonable for Mr X to take this matter up in court.

The complaint

1. Mr X complains a pothole caused damage to his motor vehicle. Mr X says the Council failed to properly consider his insurance claim.
2. Mr X says the matter caused significant distress.

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The Ombudsman’s role and powers

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)
4. 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.

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How I considered this complaint

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

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Final decision

7. We will not investigate Mr X’s complaint because he has a right to pursue the matter in court. It is reasonable for Mr X to use this right because only the courts can decide whether the Council was negligent and whether it should pay damages.

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Investigator's decision on behalf of the Ombudsman