Summary: The Ombudsman will not investigate Mr X’s complaint that he suffered damage to his car when he hit a pothole in the road. If Mr X believes the Council is liable for the damage to his car and/or that the Council has failed to properly maintain the road it would be reasonable for him to take the matter to court.

The complaint

1. The complainant, Mr X, complains he suffered damage to his car when he hit a pothole in the road. He would like the Council to pay compensation for the damage and repair the road.

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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)

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How I considered this complaint

4. I reviewed Mr X’s complaint, shared my draft decision with him and invited his comments.

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What I found

5. 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.
6. Mr X suffered damage when his car hit a pothole in the road. He suggests the Council failed to comply with its duty to maintain the road and believes it should pay him compensation for the damage and carry out repairs.
7. 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 this is not something the Ombudsman can provide. It would therefore be reasonable for Mr X to take the matter to court.
8. Mr X may also take court action if he believes the Council has failed to maintain the road. Section 56 of the Highways Act 1980 allows Mr X to serve notice on the Council and, if it does not act, he may apply to the court for an Order requiring it to carry out repairs. Only the courts may decide whether the Council has fulfilled its statutory obligation so if Mr X wishes to pursue this matter it would be reasonable for him to follow the process set out above.
9. While Mr X is also unhappy about the way the Council has dealt with his complaint, the courts have said that where we cannot investigate a complaint about the main or underlying issue, we cannot normally investigate related issues either. (R (on the application of M) v Commissioner for Local Administration in England [2006] EWHC 2847 (Admin)). So, where the substance of a complaint is not subject to investigation, the Ombudsman does not investigate the Council’s handling of the issue in isolation.

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Final decision

10. The Ombudsman will not investigate this complaint. This is because it would be reasonable for Mr X to go to court.

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Investigator's decision on behalf of the Ombudsman