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Essex County Council (17 018 831)

Category : Transport and highways > Highway repair and maintenance

Decision : Closed after initial enquiries

Decision date : 29 Mar 2018

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate Miss X’s complaint about the Council’s failure to maintain a public highway. If Miss X considers the Council is liable for damage to her car it would be reasonable for her to take the matter to court.

The complaint

  1. The complainant, whom I shall refer to as Miss X, complains her car suffered damage when she drove over a pothole.

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The Ombudsman’s role and powers

  1. 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

  1. I reviewed the details of Miss X’s complaint and the Council’s response to her claim for compensation. I shared my draft decision with Miss X and invited her comments.

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What I found

  1. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary.
  2. In this case Miss X’s car was damaged when she drove over a pothole in the road in January 2018. She made a claim to the Council for the cost of repairs but the Council refused it. It acknowledged it had not fulfilled its duty to maintain the highway but refused to accept liability as it had inspected the road prior to the accident and found no defect which it considered dangerous. It therefore explained it had a defence against Miss X’s claim under Section 58 of the Highways Act 1980.
  3. The Ombudsman will not investigate this complaint. Although Miss X suffered damage to her car from driving over a pothole, whether the Council is liable for the damage is a legal issue. It requires interpretation of the law and this is not something the Ombudsman can provide. It would therefore be reasonable for Miss X to take the matter to court.

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Final decision

  1. Tthe Ombudsman will not investigate this complaint. This is because it would be reasonable for Miss X to take the matter to court.

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Investigator's decision on behalf of the Ombudsman

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