Summary: The Ombudsman will not investigate Mr X’s late complaint about a pothole causing damage to his car’s tyre and suspension spring. The Council denied liability for the damage in May 2017 and Mr X complained to the Ombudsman in July 2019 so the complaint is late. There is no good reason for the Ombudsman to investigate now, as his claim is one of negligence by the Council causing damage to his property. It is for the courts to decide on legal issues of negligence and make awards of damages. The appropriate route for Mr X to pursue his claim is to a court.

The complaint

1. Mr X complains his car tyre and suspension spring were damaged by a pothole on a Council road in March 2017. He wants the Council to reimburse him for the car repairs, which it has refused to do.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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)

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How I considered this complaint

4. As part of my assessment I have:
• considered the complaint and the documents provided by Mr X;
• issued a draft decision, inviting Mr X to reply, and considered Mr X’s telephone comments.

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What I found

5. In March 2017, Mr X drove over a pothole on a Council road. The incident damaged his tyre and suspension spring. Mr X made a claim against the Council for the damage later the same month.
6. The Council turned down Mr X’s claim for damages. They had inspected the road during its normal inspection rota. The road was inspected on a yearly basis. After the last inspection in November 2016, the Council had received no reports of a defect in that road. After Mr X’s report, the Council inspected it again in April 2017 and did not identify any defect requiring repair. Mr X believes that the Council initially inspected the wrong stretch of road.
7. The Council decided in May 2017 it had not been negligent or in breach of its statutory road repair duty, so was not liable for Mr X’s car damage. Mr X wrote to the Council again in November 2018 on the same matter but the Council’s position did not change. Mr X complained to the Ombudsman in July 2019.
8. The Ombudsman expects people to complain to him within 12 months of their becoming aware of the problem complained of. The Council denied liability on Mr X’s claim in May 2017 and Mr X complained to the Ombudsman in July 2019, so the complaint is late. Mr X says he has taken the advice of others on who he should complain to and when. But I do not consider the Ombudsman has good reason to exercise discretion to investigate this late complaint.
9. In reaching my view, I take into account that Mr X’s complaint amounts to an allegation that the Council has been negligent. Only a court can decide issues of negligence, which is a legal issue, and make any award for damages. I consider it would be reasonable to expect Mr X to seek a remedy in court. Even if Mr X’s complaint had been in time, it would be a matter for the courts.
10. Furthermore, Section 58 of the Highways Act 1980 gives councils the right to put forward in court a defence against claims for damage due to the condition of the highway. The Ombudsman should not remove that right by investigating Mr X’s complaint.

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Final decision

11. The Ombudsman should not investigate this complaint. This is because:
• Mr X’s complaint is late and there are no good reasons to investigate it now;
• the complaint is an allegation of Council negligence causing damage to his car. The appropriate route for Mr X to pursue the matter is in the courts. The Ombudsman cannot give Mr X the outcome he wants.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman