Summary: We will not investigate Mr X’s complaint about the Council’s decision to refuse his claim for damages after his car hit a pothole. This is because this is a complaint about negligence which is a legal matter for the courts to consider and decide. We cannot decide a negligence claim.

The complaint

1. Mr X complains the Council has wrongly refused his claim for damages after his car hit a pothole, damaging two of his tyres.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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

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

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My assessment

7. Mr X complains about the Council’s decision to refuse his claim for damages. He says information he obtained from the Council via a freedom of information request shows it did not meet its duties to maintain the highway and its decision to refuse his claim is incorrect
8. We will not investigate Mr X’s complaint. This is because it is about negligence which is a legal matter for the courts to consider and decide. We cannot decide a negligence claim. This involves looking rigorously, and in a structured way at evidence, as only the courts can, to make its findings. We also have no powers to recommend or enforce any award of damages and we cannot recommend actions or payments that ‘punish’ the Council
9. We would expect someone in Mr X’s position to seek a remedy in the courts, either directly or via his insurers if he wishes to pursue the claim further and considers he has evidence to show the decision was incorrect. Making a claim in the courts is a simple, low cost and accessible process with fees set on a sliding scale depending on the level of the monetary claim. Those on a low income can apply for help with the fees.

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Final decision

10. We will not investigate Mr X’s complaint because it is about negligence which is a legal matter for the courts to consider and decide. If Mr X wishes to pursue the matter further it is reasonable to expect him to use his right to make his claim in the courts.

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Investigator's decision on behalf of the Ombudsman