Devon County Council (20 006 873)
Category : Transport and highways > Highway repair and maintenance
Decision : Closed after initial enquiries
Decision date : 20 Nov 2020
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Mr X’s complaint about damage to his car from potholes. This is because the complaint is late, and it is reasonable for him to seek compensation through the courts.
The complaint
- The complainant, whom I shall call Mr X, complains about damage to his car from potholes. Mr X is unhappy with the way the Council has dealt with his claim for damages and his complaint. Mr X wants the Council to pay compensation.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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 says potholes on the public highway damaged his car in June 2019. Mr X wants the Council to pay for the damage. The Council has so far refused, and Mr X is unhappy with how the Council has dealt with his claim for compensation.
- The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are good reasons to do so. I do not consider that to be the case here. I see no reason why Mr X could not have complained much earlier and so the exception at paragraph 3 applies to his complaint.
- But even if Mr X’s complaint was not late, it is not one we would consider. This is because 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 right of the Council to use that defence by investigating Mr X’s complaint.
Final decision
- The Ombudsman will not investigate Mr X’s complaint. This is because it is late and it is reasonable for Mr X to use the legal remedy available to him.
Investigator's decision on behalf of the Ombudsman