Summary: The Ombudsman will not investigate this complaint about how the Council with a report of damage to the complainant’s car. The Ombudsman cannot decide if the Council was responsible for the damage. Other fault by the Council has not caused significant injustice to the complainant. ere

The complaint

1. The complainant, who I refer to here as Mr B, has complained about how the Council dealt with his complaint that in a pothole in the road had damaged his car.

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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)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’.
5. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe:

• it is unlikely we would find fault;
• the fault has not caused injustice to the person who complained; or
• the injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I have considered what Mr B said in his complaint and discussed it with him.

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What I found

7. Mr B says two tyres on his car were damaged by a pothole in a road maintained by the Council.
8. The Council first wrongly said a different council maintained the road. It has now accepted it does maintain the road but has denied any liability for damage to Mr B’s car.
9. Mr B’s complaint about the damage to his car is, in effect, that the Council has been negligent. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only a court can decide if a council has been negligent and what damages must be paid. This was about six weeks after Mr B first contacted the Council about the damage.
10. We cannot decide whether a council has been negligent and have no powers to enforce an award of damages. For this reason, we would usually expect someone in Mr B’s position to seek a remedy in the courts, directly or through his insurers.
11. While there was an initial error by the Council, I do not consider this or any other fault by the Council caused Mr B injustice that would warrant our involvement.

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Final decision

12. I have decided we will not investigate this complaint for the reasons given in paragraph 10 and 11.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman