London Borough of Merton (20 011 953)
Category : Transport and highways > Highway repair and maintenance
Decision : Closed after initial enquiries
Decision date : 19 Mar 2021
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Mr X’s complaint about damage to his car from a pothole. This is because 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 a pothole. Mr X wants the Council to pay for the damage. Mr X is unhappy with how long it has taken the Council to respond to his claim.
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 Mr X’s complaint to us 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 a pothole on the public highway damaged his car. Mr X wants the Council to pay for the damage. In response to our enquiries, the Council said it has received Mr X’s claim and has passed it on to its insurers.
- 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 Mr X’s claim for damages, 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
- We will not investigate Mr X’s complaint. This is because it is reasonable for Mr X to use the legal remedy available to him.
Investigator's decision on behalf of the Ombudsman