Summary: We will not investigate Mr X’s complaint about the Council’s failure to maintain the public highway to a reasonable standard. This is because it is reasonable for Mr X to submit a claim to the Council’s insurers and ultimately take the matter to court.

The complaint

1. Mr X complained the Council failed to maintain the public highway. Mr X said the Council re-paved an area it is responsible for but failed to remove tree roots which caused the site to be unstable. Mr X said he passed the area on his mobility scooter, but due to the uneven surface he lost control and crashed causing him physical injury and damage to his scooter.
2. Mr X said the matter caused him distress. Mr X wants the Council to pay for the damage to his scooter and his person.

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The Ombudsman’s role and powers

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’s complaint is mainly that the organisation has been negligent. Deciding about 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. 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.
8. We will not investigate this complaint. The role of the Ombudsman is to consider complaints of administrative fault. We cannot decide liability in complaints about damage to persons, vehicles or property. Only the courts can do this. Mr X could submit a claim to the Council’s insurers. If the claim is rejected, Mr X could take the matter to court. It is reasonable to expect Mr X to do so because it is the only way he can get the outcome he seeks.

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Final decision

9. We will not investigate Mr X’s complaint because it is reasonable for him to take the matter to court.

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Investigator's decision on behalf of the Ombudsman