Summary: The Ombudsman will not investigate Mr A’s complaint about damage to his car caused by a pothole. This is because Mr X has a legal remedy and it would be reasonable for him to use this.

The complaint

1. The complainant, whom I shall refer to a Mr A, says a pothole on the highway caused damage to his car. Mr A wants the Council to reimburse the cost to repair the damage, but the Council’s contractors have refused his claim for compensation.

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The Ombudsman’s role and powers

2. The law says the Ombudsman cannot normally investigate a complaint when someone could take the matter to court. However, he may decide to investigate if he considers it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c))

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How I considered this complaint

3. I have considered:

• the information Mr A provided,
• the Council’s replies to his complaint,
• Mr A’s comments on a draft of this decision.

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What I found

4. Mr A says a pothole in the highway damaged his car. He made a claim against the Council, but the Council’s contractor has rejected this.
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. Section 58 of the Highways Act 1980 gives a highway authority the right to put forward in court a special defence against claims for loss or damage resulting from the condition of the highway.
7. As the Council’s contractor has rejected Mr A’s claim, he now has the right to make a claim to court. The Ombudsman cannot normally investigate a complaint when someone can take the matter to court.
8. I do not consider there are any reasons why the Ombudsman should exercise his discretion and investigate Mr A’s complaint. This is because whether the Council is liable for the damage to Ms A’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 a matter the Ombudsman can decide.
9. It seems to me reasonable that Mr A should take legal action if he believes the Council is at fault and so I will not exercise discretion to investigate the complaint.

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Final decision

10. The Ombudsman will not investigate Mr A’s complaint about damage to his car caused by a pothole. This is because he has a legal remedy and it would be reasonable for him to use this.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman