Summary: We will not investigate Ms C’s complaint about damage to her car from a newly re-surfaced road. This is because it is reasonable for Ms C to pursue her compensation claim by taking the Council to court.

The complaint

1. Ms C complains her car was damaged by tar after the Council re-opened a newly re-surfaced road when heavy rain was forecast. Ms C complains the Council has wrongly refused her claim of £250 for the professional cleaning costs she had to pay.

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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 Act 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

4. I considered information provided by Ms C.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Ms C complains her car was damaged because the Council wrongly re-opened a freshly re-surfaced road when heavy rain was forecast. So in effect, Ms C complains the damage was the result of negligence by the Council.
7. Deciding 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.
8. In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation. Also, unlike the Ombudsman, the court can order a party to pay damages.
9. So, we would normally expect someone in Ms C’s position to pursue their compensation claim by taking the Council to court.
10. I find it is reasonable for Ms C to take the Council to court. The fee for making a claim is relatively modest and Ms C may ask for the fee to be reimbursed if her claim is successful.
11. So, we will not investigate this complaint.

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Final decision

12. We will not investigate Ms C’s complaint because it is reasonable for her to take the Council to court.

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Investigator's decision on behalf of the Ombudsman