Summary: We will not investigate Mr X’s complaint about the state of local roads or that his car was damaged by a pothole. This is because it is reasonable for Mr X to apply for an order to court and take his claim for damages to court.

The complaint

1. The complainant, who I will refer to as Mr X, says a ‘invisible’ pothole damaged his car and he had to pay for repairs. He also complains about the general state of the roads in his area.
2. Mr says he would like the Council to resurface the local roads properly.

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The Ombudsman’s role and powers

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)

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How I considered this complaint

4. I considered information provided by Mr X.
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 its highways. 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.
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.
8. 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. So, it is reasonable to expect Mr X to use this process to try and get the Council to do the resurfacing works he wants.

9. Mr X also says his car was damaged by a pothole. He made a claim to the Council in December 2023, but the Council denied liability. It advised him of his rights to take the matter to court.
10. In effect, Mr X is saying the Council has been negligent here. 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.
11. 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 X’s position to seek a remedy in the courts.
12. I do not consider there is any exceptional reason why Mr X cannot do this. So, we will not investigate this complaint.

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Final decision

13. We will not investigate Mr X’s complaint because it is reasonable for him to take his claim for car damage to court. And it is reasonable to expect him to apply to court for an order.

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Investigator's decision on behalf of the Ombudsman