Summary: We will not investigate this complaint about injury caused by a pothole as it is reasonable to expect the complainant to pursue the matter in court. There is insufficient evidence of fault with regards to how the Council manages the reporting of potholes and we cannot achieve the outcome the complainant seeks regarding changes to the Council’s policy.

The complaint

1. Mr X complains that the Council has refused liability for injury he sustained after hitting a pothole. Mr X says the policy used by the Council to reject claims is not fit for purpose and that its website does not make it clear that reports made over the telephone are prioritised. Mr X wants the Council to accept liability for his injury and to make changes to its policy and its website.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. 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

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X was receiving treatment for a spinal injury. When driving he hit a pothole and his surgeon said he had whiplash. Mr X submitted a liability claim against the Council for his whiplash which the Council rejected. Mr X also complained that the Council’s website does not make it clear that reports about potholes made over the telephone are prioritised over those made online.
7. I will not investigate Mr X’s complaint about how the Council dealt with his injury claim. We cannot determine if the Council is legally liable for his injury or whether it should pay compensation to him. This is a matter for the courts and there is a low cost, simple procedure open to anyone to make a money claim in the courts. For these reasons, and as we cannot achieve the outcome Mr X seeks, it is reasonable to expect him to resort to court action.
8. I will not investigate Mr X’s complaint that the Council’s website does not properly inform people that reports made over the telephone are prioritised. The page users are taken too makes it clear that if there is a risk to safety reports should not be made online and instead provides a number to call. I am satisfised that this is sufficiently displayed and therefore there is no evidence of fault by the Council.
9. We are not an appeal body, and we have no power to change the Council’s policy on how it deals with reports of potholes or to tell the Council to change it in the absence of fault. The Council, through its elected members, makes policy. If Mr X thinks the policy is wrong, or thinks there should be changes, then he could raise this as an issue with his local councillors. It is for the Council, not us, to decide whether to change the policy.

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Final decision

10. We will not investigate Mr X’s complaint because it is reasonable to expect him to pursue his liability claim against the Council in court. There is insufficient fault with regards to how the Council prioritise reports of potholes online and we cannot achieve the outcome he seeks regarding changes to the Council’s policy.

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Investigator's decision on behalf of the Ombudsman