London Borough of Enfield (21 014 982)
Category : Transport and highways > Highway repair and maintenance
Decision : Closed after initial enquiries
Decision date : 19 Jan 2022
The Ombudsman's final decision:
Summary: We will not investigate Mr B’s complaint that his car was damaged due to the Council’s failure to repair a pothole. This is because it is reasonable for Mr B to pursue his compensation claim at court, which is in the best position to decide the matter.
The complaint
- The complainant, who I will refer to as Mr B, complains that his car was damaged after hitting a large pothole, which the Council had failed to repair. Mr B says the Council has wrongly not accepted liability for the damage to his car and the losses he has suffered. Mr B would like the Council to pay him compensation in line with his total losses of over £17,000.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- The Act 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 information provided by Mr B.
- I considered the Ombudsman’s Assessment Code.
My assessment
- The Council has considered Mr B’s claim for compensation but did not accept the Council is liable for the damage to his car. Mr B may pursue his claim by taking the Council to court.
- The role of the Ombudsman is to consider complaints of administrative fault. We cannot decide liability in complaints about damage to property. This is for the Council’s insurers and ultimately for the courts. The Council has a statutory defence if it can show it could not reasonably have been expected to put right any defects before the incident happened. Only the court can decide if the Council has been negligent.
- The court can decide what damages, if any, the Council should pay. Also, unlike the Ombudsman, the court can order a party to pay damages.
- I find it is reasonable for Mr B to take the Council to court, particularly because the compensation he seeks is significant. The fees for making a claim are relatively modest and Mr B may ask for the fee to be reimbursed if his claim is successful.
Final decision
- We will not investigate Mr B’s complaint because it is reasonable for him to take the Council to court.
Investigator's decision on behalf of the Ombudsman