Basingstoke & Deane Borough Council (20 002 701)
Category : Transport and highways > Other
Decision : Closed after initial enquiries
Decision date : 17 Aug 2020
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate whether damage to a car which hit a barrier at a car park was caused by the Council’s negligence. This is a matter for the courts to decide.
The complaint
- The complainant, who I refer to here as Mr D, has complained the Council will not pay for repairs to his car. He says it is responsible for damage caused by a height restriction barrier at a Council-run car park.
The Ombudsman’s role and powers
- 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)
How I considered this complaint
- I have considered what Mr D said in his complaint. MR D commented on a draft before I made this decision.
What I found
- Mr D says his car was damaged by a height restriction barrier at a Council-run car park. He asked the Council to pay the cost of repair because the barrier was lower than stated on it. The Council has denied liability.
- The height stated on the barrier was 2 metres or 6 foot 6 inches (which is 1.981 metres). The Council says the barrier was slightly under 2 metres in places but was all over 6 foot 6 inches.
- Even if the barrier was lower than 2 metres, I cannot simply conclude the Council was responsible for the damage to Mr D’s car. There are several factors that might affect the actual height of the car such as the road condition, tyre inflation and speed.
- Mr D’s complaint 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.
- 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 D’s position to seek a remedy in the courts, directly or through his insurers.
Final decision
- I have decided we will not investigate this complaint. This is because there is no exceptional reason Mr D cannot seek a remedy in court.
Investigator's decision on behalf of the Ombudsman