Decision : Upheld
Decision date : 19 Apr 2021
The Ombudsman's final decision:
Summary: There was fault in the Council’s communication in response to a request for a pothole to be repaired. The Council told Mr X three times that it would complete a repair by a certain date and failed to keep to the promise. Mr X’s complaints about possible damage to his car have not been investigated, as he is able to pursue a claim through the courts. An apology by the Council is a satisfactory remedy to his stress and time and trouble in chasing up the repair. The pothole repair has now been completed.
- The complainant, who I shall call Mr X, complains there has been service failure by the Council, as it has repeatedly failed to repair a pothole outside his house after the Council promised it would complete the repair. Mr X says chasing up the repair has caused him stress and driving over the pothole may have damaged his car.
What I have investigated
- I have investigated Mr X’s complaint that the Council told him it would repair a pothole but failed to do so in the timescale given and did not inform him of delays.
- The final section of this statement contains my reason(s) for not investigating the rest of the complaint.
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)
- 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I read the papers put in by Mr X.
- I considered the documents supplied by the Council.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- Mr X reported a pothole outside his house to the Council in April 2020. He says the Council said it would repair it within 20 working days.
- Mr X made an official complaint. The Council told him on 14 September it would repair the pothole within 5 working days. The Council apologised for the delay.
- In response to Mr X’s stage 2 complaint, the Council said that ‘unfortunately due to the recent high demand on the service repairs have taken longer than expected’. Mr X says the Council repaired the pothole a few weeks later, but only did half the job. The Council says the original repair was completed on 9 October but then an inspector identified further works as the area had deteriorated since the original complaint was raised. The Council told Mr X the further works would be completed within the next 14 days.
- The Council completed the work on 22 January 2021. The Council has said that Mr X can contact it to request a claim form if he wishes to claim for damage to his car.
- Mr X says he has been stressed at having to put in continued complaints and the work has taken too long to complete. He thinks it may have damaged the suspension on his car.
- I find there has been fault by the Council. It has given Mr X dates that the repair would be completed on three occasions which it has not kept to. It’s communication with Mr X has been poor and has not given him realistic expectations of how the long the repair would take. The Council has not kept Mr X informed of delays and this has meant that he has been put to time and trouble following up his complaint.
- Mr X says the delays in repairing the pothole may have caused damage to his car. I explain in the ‘parts of the complaint that I did not investigate’ why I have not considered this injustice that Mr X claims.
- Mr X also says that chasing up the repair has been stressful and put him to time and trouble. I note that Mr X wants separate compensation for his stress and time and trouble. The Ombudsman does not award compensation, we remedy injustice. In this case the Council has repaired the pothole and Mr X can make a claim for damage to his car through the courts. While I appreciate he has found the situation stressful, my view is that an apology from the Council is a satisfactory remedy to the stress and time and trouble of making the complaint. The Council has apologised briefly in its letters, but in this case I will ask it to write directly to Mr X with a formal apology also.
- The Council writes to Mr X within one month of the date of this decision with an apology for its poor communication in response to his complaints about highway repairs.
- I have completed my investigation of this complaint. This complaint is upheld as there was fault by the Council which has caused injustice. The apology from the Council, remedies the stress and time and trouble caused to Mr X.
Parts of the complaint that I did not investigate
- I have not investigated Mr X’s complaint about the time taken for the Council to repair a pothole meaning Mr X’s car may have been damaged. 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)
- Mr X could have applied to a Magistrates’ court for an order requiring the Council to take whatever action is needed to bring the highway up to standard. Mr X also has the right to make his claim for vehicle damage to the Council’s insurers, as a claim for negligence against the Council. If he is not satisfied with the insurers response, he can take the matter to court to decide if:
- the authority should have dealt with the problem before it caused Mr X harm;
- Mr X should have taken steps to avoid the harm;
- the Council is liable to pay damages for any loss or injury.
Investigator's decision on behalf of the Ombudsman