Cornwall Council (19 013 570)
Category : Transport and highways > Highway repair and maintenance
Decision : Closed after initial enquiries
Decision date : 12 Dec 2019
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Mr X’s complaint that the Council failed to properly maintain the public highway, resulting in damage to his car when he hit a pothole in the road. This is because it would be reasonable for Mr X to take the matter to court.
The complaint
- The complainant, Mr X, complains he suffered £820 of damage to his car when he hit a pothole in the road.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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 reviewed Mr X’s complaint and the Council’s response. I shared my draft decision with Mr X and invited his comments.
What I found
- Mr X drove into a pothole in August 2019 causing £820 of damage to his car. He made a claim to the Council for the cost of repairs but the Council refused it. It said it carried out inspections twice per year and was not aware of any outstanding defects at the time the incident occurred. It explained the law (Section 58 of the Highways Act 1980) provides it with a special defence against claims for damage where it can show it operates a reasonable system of inspection and repair and it considered it could rely on that defence in this case.
- The Ombudsman will not investigate this complaint. Whether the Council is liable for the damage to Mr X’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 something the Ombudsman can provide. It would therefore be reasonable for Mr X to take the matter to court.
Final decision
- The Ombudsman will not investigate this complaint. This is because it would be reasonable for Mr X to take the matter to court.
Investigator's decision on behalf of the Ombudsman