Summary: We will not investigate Mrs B’s complaint that her car was damaged by a pothole. This is because it is reasonable for Mrs B to pursue her compensation claim by taking the Council to court.

The complaint

1. Mrs B says her car was damaged by a pothole which the Council had failed to repair. Mrs B complains the Council has wrongly refused her claim for compensation.

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

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My assessment

6. We do not normally investigate complaints about property damage. This is because in effect such complaints are that an organisation has been negligent.
7. The Council has considered Mrs B’s claim for compensation but did not accept the Council is liable for the damage to her car. Mrs B may pursue her claim by taking the Council to court.
8. 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. The Council has relied on the statutory defence that it could not reasonably have been expected to put right this defect before the incident happened.
9. Only the court can decide if the Council has been negligent and whether the Council is entitled to rely on this statutory defence.
10. 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.
11. 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 Mrs B’s position to seek a remedy in the courts.
12. I do not consider it is unreasonable for Mrs B to do this.
13. So, we will not investigate this complaint.

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Final decision

14. We will not investigate Mrs B’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