Summary: We will not investigate this complaint about vehicle damage caused by a pothole. This is because it is reasonable for Mr B to take the Council to court.

The complaint

1. The complainant, who I will refer to as Mr B, complains his car was damaged after hitting a pothole which the Council had failed to repair. Mr B says he had to pay for a new tyre and cancel appointments which resulted in a loss of earnings. Mr B complains the Council has wrongly not accepted responsibility for the damage. Mr B would like the Council to pay him compensation for the money he spent repairing his car.

Back to top

The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)

Back to top

How I considered this complaint

4. I considered information provided by Mr B.
5. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

6. Mr B says his car was damaged because the Council failed to maintain a road it is responsible for. In effect, Mr B’s complaint is the Council has been negligent.
7. The Council is expected to routinely monitor the state of highways and carry out repairs where necessary. But, the level of maintenance, frequency of inspections, and threshold for repair is not set out in law and is open to interpretation. Also, 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.
8. Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings.
9. Only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
10. I cannot decide whether the Council has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Mr B’s position to seek a remedy in the courts, directly or through his insurer. I do not consider there is any exceptional reason why Mr B cannot do this. So, we will not investigate this complaint.

Back to top

Final decision

11. We will not investigate Mr B’s complaint because it is reasonable for him to pursue his compensation claim by taking the Council to court.

Back to top

Investigator's decision on behalf of the Ombudsman