Surrey County Council (23 012 889)
Category : Transport and highways > Highway repair and maintenance
Decision : Closed after initial enquiries
Decision date : 16 Nov 2023
The Ombudsman's final decision:
Summary: We will not investigate Mr B’s complaint that his car was damaged by a pothole. This is because it is reasonable for Mr B to pursue his compensation claim by taking the Council to court.
The complaint
- The complainant, who I will refer to as Mr B, complains the Council has refused his compensation claim after his car was damaged by a pothole.
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 as a local highways authority has a statutory duty to maintain adopted streets. The Council is expected to routinely monitor the state of highways and carry out repairs where necessary. But, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
- The Council’s insurers have considered Mr B’s claim for compensation but did not accept the Council is liable for the damage to his car. Mr B may now pursue the matter 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.
- Only the court can decide if the Council has been negligent, including whether the Council is entitled to rely on the statutory defence that it could not reasonably have been expected to put right any defects before the incident happened.
- 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. The fee for making a claim is 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