Decision : Not upheld
Decision date : 03 Oct 2018
The Ombudsman's final decision:
Summary: Ms X complains she was injured by a pot hole. She wants the Council to repair the pot hole and pay her compensation. I have decided to discontinue my investigation as it is reasonable to expect Ms X to go to court. There is a procedure open to anyone to make a money claim in the courts. Ms X can also apply to court for the Council to repair the highway.
- Ms X complains she was injured by a pot hole. She wants the Council to repair the pot hole and pay her compensation.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation. (Local Government Act 1974, section 24A(6), as amended)
- 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)
How I considered this complaint
- I considered Ms X’s written complaint.
- Ms X and the Council have had an opportunity to comment on my draft decision.
What I found
- The Highways Act 1980 Section 41 places a duty on highways authorities to maintain highways maintainable at the public expense. Highways authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary.
- Ms X fell in a pot hole and injured her ankle. She complained to the Council via a third-party complaints website. She said she wanted the Council to repair the pot hole and compensate her for her injury. When the Council did not respond Ms X complained to the Ombudsman.
- In response to the Ombudsman’s enquiries the Council says it has not received any correspondence from Ms X, or the third-party complaints site, on this matter. The third party complaints site sent the emails to staff who had left the Council several years ago.
- Regardless of this, the Ombudsman cannot determine if the Council is legally liable to compensate Ms X; only the courts can. There is a procedure open to anyone to make a money claim in the courts. For these reasons, it is reasonable to expect Ms X to go to court for the compensation she seeks.
- Ms X can also apply to the magistrates’ court under Section 56 of the Highways Act 1980 for an order requiring the Council to carry out repairs. It is reasonable to expect her to seek a remedy in this way. That is because the court has powers, which the Ombudsman does not have, to order the Council to carry out highway repairs.
- I have decided to discontinue my investigation as Ms X has a legal remedy and I consider it reasonable for her to use it.
Investigator's decision on behalf of the Ombudsman