Summary: The Ombudsman should not investigate Mr X’s complaint about damage to his car he says was caused by the Council’s failure to maintain the road. 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, which it is reasonable for him to use.

The complaint

1. Mr X complains two tyres and wheels were damaged on his car because the Council failed to properly maintain the road.
2. Mr X says the matter caused him financial loss of about £1,000 in car repairs and loss of income, which he wants the Council to reimburse. He also wants the Council to take responsibility for the state of the roads.

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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)

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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.

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What I found

5. In September 2019, Mr X drove over a pothole on a Council road, damaging two of his tyres and wheels. Mr X made a claim against the Council for the damage.
6. The Council says it inspected the road and identified the defect earlier that September. Its officer ordered repairs to the road. Due to the designation of the road, the Council scheduled the repairs for completion within 26 weeks. The Council’s defence was that Mr X’s incident happened within the time period it had to fix the road.
7. The Council replied to Mr X’s insurance claim in November 2019 saying it had not been negligent or in breach of its statutory road repair duty and had taken every reasonable step to make sure the road was safe. It considered it was not liable for Mr X’s car damage.
8. I do not consider the Ombudsman should investigate Mr X’s complaint. His complaint amounts to an allegation that the Council has been negligent in its road maintenance duties, a claim the Council denies. The Ombudsman cannot make rulings on legal matters such as negligence. Only a court can decide issues of negligence and make awards for damages. Courts can decide whether the Council’s legal defence is acceptable, or whether it is liable for any of Mr X’s car damage. So I consider it would be reasonable to expect Mr X to take the matter to court, as that is the body which can make the findings and may provide the remedy he seeks.
9. 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

10. The Ombudsman should 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 matter is in the courts, which it is reasonable for him to use. The Ombudsman cannot give Mr X the outcome he wants.

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Investigator's decision on behalf of the Ombudsman