Decision : Closed after initial enquiries
Decision date : 28 Mar 2020
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Mr X’s complaint about damage to his car he says was due to a pothole on the public highway. This is because the Ombudsman cannot establish liability in such complaints, and it is reasonable for Mr X to use the legal remedy available to him.
- The complainant, whom I shall call Mr X, says a pothole on the public highway damaged his car. He wants the Council to pay for the damage and compensation.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
- 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 considered Mr X’s complaint to the Ombudsman and the information he provided. I also gave Mr X the opportunity to comment on a draft statement before issuing a final decision on his complaint.
What I found
- Mr X complains a pothole on the public highway damaged his car. He wants the Council to pay for the damage and to pay compensation for time he missed at work.
- The role of the Ombudsman is to consider complaints about administrative fault. We cannot establish liability in complaints involving damage to property. Claims for damage to property are a matter for the Council’s insurers and, ultimately, for the courts.
- If the Council’s insurers reject a formal claim from Mr X, it is open to him to make a claim in court. I consider it would be reasonable for him to do so. This is because only the Court can decide if the Council has been negligent. The Court can decide what damages, if any, the Council should pay. Also, Section 58 of the Highways Act 1980, gives a council the right to put forward in court a defence against claims for damage from the condition of the highway. The Ombudsman will not remove the Council’s right to use that defence by investigating the complaint. Mr X should take his own legal advice about the options available to him.
- The Ombudsman will not investigate Mr X’s complaint. This is because it is reasonable for Mr X to use the legal remedy available to him.
Investigator's decision on behalf of the Ombudsman