Summary: The Ombudsman will not investigate Mr X’s complaint about a pothole causing damage to his car. The Council denied liability for the damage in 2019. Mr X’s 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 was damaged by a pothole on a Council highway. Mr X made an insurance claim to the Council for his losses in September 2018. He says the Council delayed in dealing with his claim, then rejected because it considered it had a ‘reasonable system of inspection and maintenance’ in place for the road. Mr X says he has evidence the Council is not properly implementing that system.
2. Mr X wants the Council to admit responsibility for his incident, apologise for rejecting his claim, reimburse him for car repair costs of over £300, and pay him compensation.

Back to top

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)

Back to top

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.

Back to top

What I found

5. Mr X’s complaint amounts to an allegation that the Council has been negligent in its system of checking and maintaining the highway. Only a court can decide issues of negligence, which is a legal issue, and make any award for damages. It is the court which could consider Mr X’s concerns about the Council’s actions, make the relevant findings to determine liability on the core highways issue, and provide the remedy Mr X seeks. So I consider it would be reasonable to expect Mr X to take the matter to court. He may wish to take independent legal advice before doing so.
6. 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 from the Council by investigating Mr X’s complaint.
7. The Council accepts it took about a week longer than its normal three-month period to respond to Mr X’s claim. The Ombudsman will not normally look at a council’s internal complaint or other processes, unless he is intending to investigate the core issue of a complaint. In any event, the Council apologised to Mr X for the delay in February 2019, which is the likely recommendation the Ombudsman would have made to remedy it. There are no grounds for the Ombudsman to consider the delay issue further. If Mr X believes the delay caused him a loss, he might include the matter in any court action he decides to take.

Back to top

Final decision

8. The Ombudsman will not investigate this complaint. This is because:
• the complaint is an allegation of Council negligence causing damage to Mr X’s car. The appropriate route for Mr X to pursue the findings and the remedy he seeks is in court;
• the Council has provided the appropriate remedy for the delay in responding to Mr X’s claim.

Back to top

Investigator's decision on behalf of the Ombudsman