Summary: We will not investigate Mr B’s complaint that his car was damaged by a road defect which the Council had failed to repair. This is because it is reasonable for Mr B to pursue his compensation claim at court. An investigation solely into the Council’s handling of Mr B’s claim is not justified.

The complaint

1. Mr B says his car was damaged after hitting a road defect which the Council had failed to repair. Mr B says the Council wrongly refused his compensation claim. Mr B also complains the Council took too long to decide his claim and his request for a review of the Council’s decision. Mr B would like the Council to: apologise; pay his claim; and, explain how the Council will deal with incidents like this in future.

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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 Mr B.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr B complains his car was damaged because the Council failed to maintain a road it is responsible for. So, in effect, Mr B’s complaint is that the Council has been negligent.
7. The role of the Ombudsman is to consider complaints of administrative fault. We take the view negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
8. Mr B may pursue his compensation claim by taking the Council to court.
9. 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.
10. Also, a local highways authority has a statutory defence if it can show it could not reasonably have been expected to put right any defects before the incident happened.
11. Only the court can decide if the Council has been negligent and whether the Council is entitled to rely on this statutory defence.
12. In addition, only a court can decide if an organisation should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
13. I cannot decide whether the Council has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Mr B’s position to seek a remedy in the courts, directly or through his insurers. I do not consider there is any exceptional reason why Mr B cannot do this.
14. So, we will not investigate Mr B’s complaint about the damage to his vehicle.
15. Mr B also complains the Council took 128 days to respond to his claim and 34 days to consider his review request.
16. We would not normally start an investigation solely into a council’s handling of a compensation claim if, as in this case, we are not investigating the substantive matter complained about. This is because it is unlikely an investigation would be a good use of our limited resources or achieve a meaningful outcome, particularly where a claim has already been decided.
17. Also, insurance claims can take some time to be decided and the information does not suggest any delay by the Council was so excessive it would justify the involvement of the Ombudsman.

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Final decision

18. For the above reasons, we will not investigate this complaint.

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Investigator's decision on behalf of the Ombudsman