Summary: The Ombudsman will not investigate whether damage to a car which hit a pothole in the road was caused by the Council’s negligence. This is a matter for the courts to decide. The Ombudsman will not investigate how the Council dealt with a complaint about something he will not consider.

The complaint

1. The complainant, who I refer to here as Mr B, says his car was damaged when it hit a pothole in a road maintained by the Council. He asked the Council to pay for the damage but it has refused to accept liability.
2. Mr B disagrees with the Council’s view and has continued to pursue with it.

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The Ombudsman’s role and powers

3. 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)
4. We provide a free service but must use public money carefully. It is not a good use of public resources to investigate how a council has dealt with a complaint if we are unable to deal with the substantive issue. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I have considered what Mr B said in his complaint and discussed it with him. I have also considered background information provided by the Council. Mr B commented on a draft before I made this decision.

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What I found

6. The central issue in Mr B’s complaint is the damage caused to his car for which he holds the Council liable. He says the Council has failed to follow its own Highways Safety Inspection Manual.
7. Mr B’s complaint is in effect the Council has been negligent. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only a court can decide if a council has been negligent and what damages must be paid.
8. We cannot decide whether a council has been negligent and have no powers to enforce an award of damages. For this reason, we would usually expect someone in Mr B’s position to seek a remedy in the courts, directly or through his insurers. The courts would consider if the Council had met its obligations to maintain the highway.

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Final decision

9. I have decided we will not investigate this complaint. This is because it would be reasonable for Mr B to seek a remedy in court. Further, we will not investigate how the Council has dealt with something where we will not investigate the central issue.

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Investigator's decision on behalf of the Ombudsman