Summary: We will not investigate Miss B’s complaint that her car was damaged due to the Council’s failure to maintain a road. This is because it is reasonable for Miss B to take the Council to court.

The complaint

1. Miss B complains her car was damaged after hitting a pothole which the Council had failed to repair. Miss B says the Council has wrongly refused her claim for the costs she incurred because of this incident. Miss B says the Council is responsible for maintaining this road so she should be paid compensation for the damage.

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

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My assessment

6. The Council as a local highways authority has a statutory duty to maintain adopted streets. The Council is expected to routinely monitor the state of highways and carry out repairs where necessary. But, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
7. Miss B complains her car was damaged because the Council failed to maintain a road it is responsible for. So, in effect, Miss B’s complaint is that the Council has been negligent.
8. The Council has considered Miss B’s claim for compensation but did not accept the Council is liable for the damage to her car.
9. Miss B may pursue her claim by taking the Council to court.
10. 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.
11. The Council has relied on the statutory defence that it could not reasonably have been expected to put right any defects before the incident happened. Only a 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 has been negligent and so 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 Miss B’s position to seek a remedy in the courts, directly or through her insurer.
14. I do not consider there is any exceptional reason why Miss B cannot do this. The fee for making a claim is modest and help with fees is available for people on a low income. So, we will not investigate this complaint.

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Final decision

15. We will not investigate Miss 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