Summary: We will not investigate this complaint about damage caused by a pothole. The courts are best placed to deal with negligence claims, and there is not a good reason for us to consider the matter instead.

The complaint

1. Mrs X complained about damage caused by a pothole. She says this has caused her a £390 loss, stress and damage to her car. She says the Council has refused to accept liability and it has delayed responding to her claim. She wants it to pay her £390.

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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)

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How I considered this complaint

3. I considered information provided by the complainant.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Complaints about damage caused by potholes are generally outside the Ombudsman’s jurisdiction. This is because these are really negligence claims. Only a court can decide whether:
• the Council should have dealt with the problem before it caused the complainant harm;
• the complainant should have taken steps to avoid the harm;
• the Council is liable to pay damages for any loss or injury.
6. Fees for the small claims court are on a sliding scale dependent on the amount being sought, and it is not necessary to pay for legal representation. For people on a low income or certain benefits, the fees may be waived. Where the person is successful in their claim, they can ask the court to order the other party to pay their costs.
7. There is not a reason in this case for the Ombudsman to consider the matter instead of the courts. It is reasonable, therefore, for Mrs X to use the court process available to her.
8. We also will not investigate the delay in the Council considering Mrs X’s claim, which the Council does not dispute. We expect councils to respond appropriately to any claims but would not normally investigate a complaint that it had not done so, as the underlying issue is a matter for the courts. Mrs X has the option of waiting for the Council’s response, or lodging a claim in court immediately.

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Final decision

9. We will not investigate Mrs X’s complaint because it is a matter for the courts.

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Investigator's decision on behalf of the Ombudsman