Summary: We will not investigate Mr X’s complaint that the Council failed to repair a road drain which caused damage to his car. It is reasonable for Mr X to use his legal remedy at court if he wishes to claim damages.

The complaint

1. Mr X complains that in July 2020 his car was damaged due to a raised drain on the road. He says the drain was marked with white lines and a number indicating the Council knew a repair was required. Mr X says the costs of the incident is around £1100. The Council has refused his claim for compensation.

Back to top

The Ombudsman’s role and powers

2. 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)

Back to top

How I considered this complaint

3. I have considered Mr X’s information and comments. I have considered the Highways Act 1980 section 58 regarding court claims.

Back to top

What I found

4. Mr X wrote to the Council explaining the incident, damage to his car and the related costs. The Council has rejected his claim and denied negligence.
5. The Council’s reply letter to Mr X, 7 December 2020, says it has a reasonable inspection regime, the defect was identified on 24 May, the inspector assessed as not dangerous and gave a target date of 31 March 2021 for repair. The Council did the repair on 17 July shortly after the incident. The Council says Mr X can have access to case records including highway inspection records and records of complaints about the particular road.
6. The Council refers to the Highway Act 1980, section 58, which provides a ‘special defence in action against a highway authority for damages for non repair of the highway’. The section outlines what a court will consider when deciding a claim.

Analysis

7. I will not investigate Mr X’s complaint for the following reasons:
8. The complaint is outside the Ombudsman’s jurisdiction because Mr X has or had a legal remedy at court (see paragraph 2 and 6 above). Mr X can take a claim to court if he believes the Council is at fault and wants to claim damages.
9. I consider it reasonable for Mr X to use his legal remedy. A court has the power to decide the case and award damages.

Back to top

Final decision

10. The Ombudsman will not investigate Mr X’s complaint that the Council failed to repair a road drain which caused damage to his car. It is reasonable for Mr X to use his legal remedy at court if he wishes to claim damages.

Back to top

Investigator's decision on behalf of the Ombudsman