Summary: The Ombudsman will not investigate Mr B’s complaint about damage to his car when he hit a pothole. It is reasonable to expect Mr B to use his right of remedy in the courts for the compensation he seeks.

The complaint

1. The complainant, whom I shall call Mr B, complains he hit a pothole on the highway and had to spend over £80 on repairs to his car. Mr B wants the Council to reimburse those costs, but the Council’s insurers have refused his claim for compensation.

Back to top

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 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)

Back to top

How I considered this complaint

4. I have considered Mr B’s complaint and the Ombudsman’s role and powers.

Back to top

What I found

5. Mr B has explained it cost him over £80 in repairs after he hit the pothole. He has made a claim against the Council, but the Council’s insurers have rejected this. The insurers say the Council has a defence against Mr B’s claim.
6. 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.
7. Section 58 of the Highways Act 1980 gives a highway authority the right to put forward in court a special defence against claims for loss or damage resulting from the condition of the highway.
8. As the Council has rejected Mr B’s claim, he now has the right to make a claim in court. The Ombudsman cannot normally investigate a complaint when someone can take the matter to court. I do not consider there are any reasons why the Ombudsman should exercise his discretion and investigate Mr B’s complaint. This is because whether the Council is liable for the damage to Mr B’s car is a legal issue. It requires interpretation of the law to determine whether the Council fulfilled its duty under the Highways Act and whether it can rely on the defence provided by Section 58. This is not a matter the Ombudsman can decide.
9. It is therefore reasonable to expect Mr B to use his right of remedy in the courts now the Council has refused his claim. Only the courts can decide if the Council has failed to properly maintain the highway and is liable for Mr B’s losses. There is a simple, low cost procedure open to anyone to make a money claim through the courts. Or Mr B could consider using a ‘no win no fee’ solicitor or checking if he has legal expenses insurance that would cover such a claim.

Back to top

Final decision

10. The Ombudsman will not investigate this complaint. It is reasonable to expect Mr B to use his right of remedy in the courts.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman