North Yorkshire County Council (20 007 277)
Category : Transport and highways > Highway repair and maintenance
Decision : Closed after initial enquiries
Decision date : 01 Dec 2020
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Mrs X’s complaint about damage to her car from a pothole. This is because it is reasonable for her to seek compensation through the courts.
The complaint
- The complainant, whom I shall call Mrs X, complains about damage to her car from a pothole. Mrs X says the Council was aware of the pothole and wants it to pay for the damage to her car.
The Ombudsman’s role and powers
- 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 Mrs X’s complaint to the Ombudsman and the information she provided. I also gave Mrs X the opportunity to comment on a draft statement before issuing a final decision on her complaint.
What I found
- Mrs X says a pothole on the public highway damaged her car. Mrs X says the Council was aware of the pothole and wants it to pay for the damage. The Council has so far refused.
- 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 Mrs X, it is open to her to make a claim in court. I consider it would be reasonable for her 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 Mrs X’s complaint.
Final decision
- The Ombudsman will not investigate Mrs X’s complaint. This is because it is reasonable for Mrs X to use the legal remedy available to her.
Investigator's decision on behalf of the Ombudsman