Summary: We will not investigate this complaint about damage allegedly caused to Mr X’s vehicle by a pothole. The courts are best placed to consider the matter, and it is reasonable for Mr X to use this alternative route to seek remedies for his complaint.

The complaint

1. Mr X complained about damage allegedly caused to his vehicle on two occasions by a pothole, which he said the Council had delayed repairing. He said it had not responded properly when he asked it to compensate him. He said the matter caused him stress and financial detriment, and that he risked his safety trying to obtain photographs as evidence. Mr X wants compensation for the cost of repairing the damage, action taken to properly fix the potholes, and changes to the legislation regarding pothole claims. He wants the Council to hire road inspectors with more experience.

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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)
3. 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:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

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

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My assessment

6. 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, depending on their classification, 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.
7. If a person considers that a highways authority has failed to maintain a highway it is responsible for, the person affected can apply to the Magistrates court for an order to be made under section 56 of the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway, including where defects have not previously been repaired fully. If the highways authority does not respond in time or does not accept it is responsible for maintaining the road, the person may apply to the Crown court for such an order.
8. Mr X may use this process to try to get the Council to repair the road. There might be some cost to court action. However, that alone does not mean it is unreasonable and there is often financial assistance available. There is not a good reason for us to consider the matter instead of the courts. Only the courts can order the Council to do any required work, so it is better placed than us to consider the complaint. We will therefore not investigate.
9. Further, we will generally not investigate complaints where the person seeks compensation for damage caused by potholes. That is because these are really negligence claims. We cannot decide liability or award damages, and it is open to Mr X to pursue this claim in the small claims court should the Council’s insurers refuse it.
10. We also could not achieve the other outcomes Mr X seeks. We have no power in relation to personnel matters, such as who the Council should employ to inspect roads, nor do we have any power to change the legislation surrounding potholes.
11. Mr X referred to a cliff that collapsed in the Council’s area, and its alleged better upkeep of highways in select areas, as examples of what he believes to be incompetence of the Council’s road inspectors. These are not matters that have caused Mr X a personal injustice so I have not considered these matters further.

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Final decision

12. We will not investigate Mr X’s complaint because it is reasonable for him to refer the matter to the courts.

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Investigator's decision on behalf of the Ombudsman