Summary: We will not investigate the complaint about pothole damage as it is a matter for the courts. We will not investigate the complaint about the Council's use of its unreasonable behaviour policy as there is not enough evidence of fault to justify our further involvement.

The complaint

1. Mr X complains the Council failed to recompense him for two incidents of damage caused to his car by potholes. Mr X complains the Council has invoked its unreasonable behaviour policy in response to his contact with it about these matters.

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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. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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)

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Only the courts can determine whether the Council was legally liable for the damage caused to Mr X’ s car and whether it should pay him compensation. There is a relatively simple, low-cost procedure open to anyone to make a money claim in the courts. When the Council did not meet Mr X’s claims, it is reasonable to expect him to have sought his remedy in court either directly or through his insurers.
9. The Council has an unreasonable behaviour policy which it can invoke if it considers someone having contact with it acts in an unacceptable manner. Having warned Mr X about his contact with the Council and officers about his damage claims, it says that Mr X’s behaviour continued and so it invoked its policy.
10. I have considered the Council’s action in this regard and while Mr X is unhappy with it, there is insufficient evidence of fault to justify our further involvement in this. The Council is entitled to apply its policy and we cannot question this decision in the absence of fault.
11. For these reasons, we will not investigate.

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Final decision

12. We will not investigate Mr X’s complaint because his damage claims are ultimately for the courts and there is not enough evidence of fault in respect of the Council invoking its unreasonable behaviour policy to justify our further involvement.

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Investigator's decision on behalf of the Ombudsman