Summary: The Ombudsman will not investigate Miss X’s complaint about the Council’s decision to refuse her claim for compensation for damage to her vehicle. This is because it would be reasonable for Miss X to take the matter to court.

The complaint

1. The complainant, Miss X, complains the Council has declined her claim for compensation for damage to her vehicle resulting from a collision with a damaged kerbstone in the road. She says she has paid £2,000 to fix her car.

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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 Miss X’s complaint and the Council’s response. I shared my draft decision with Miss X and invited her comments.

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What I found

5. Miss X hit a damaged kerbstone in the road with her car in August 2020. She contacted the Council to report the incident and it attended to remove it that day.
6. Miss X asked the Council for compensation for the damage to her vehicle, which she says has cost £2,000 to put right, but the Council refused her claim.
7. 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.
8. The law does not expect highway authorities to know of all issues that may occur within its network; for this reason it expects routine inspections and for authorities to act in accordance with its internal policies for inspecting and fixing issues once reported. It also provides a special defence under S58 of the Highways Act 1980 for claims of compensation where it has complied with its policies.
9. The Council’s letter to Miss X explains that it has relied on its special defence in refusing her claim for compensation and whether it is entitled to do so is a matter for the courts. Only they can determine whether the Council has fulfilled its obligations and it is not for the Ombudsman to remove its legal right to exercise its S58 defence.

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Final decision

10. The Ombudsman will not investigate this complaint. This is because it would be reasonable for Miss X to take the matter to court.

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Investigator's decision on behalf of the Ombudsman