Summary: We will not investigate Miss B’s complaint that her car was damaged after hitting a pothole. This is because it is reasonable for Miss B to pursue her compensation claim at court.

The complaint

1. Miss B complains her car was damaged after hitting a pothole which the Council had failed to repair. Miss B says the Council has wrongly not accepted responsibility for the damage. Miss B would like the Council to reimburse her repair costs.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 Miss B.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Miss B complains her car was damaged because the Council failed to maintain a road it is responsible for. So, in effect, Miss B’s complaint is that the Council has been negligent.
7. The Council has considered Miss B’s claim for compensation but did not accept the Council is liable for the damage to her car. Miss B may pursue her claim by taking the Council to court.
8. 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.
9. In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
10. Miss B says the Council should accept responsibility for the damage because it promptly fixed this pothole after the incident. But, the presence of a road defect at the time of an incident is unlikely to be enough on its own to prove negligence. This is because a local highways authority has a statutory defence if it can show it could not reasonably have been expected to put right any defects before the incident happened.
11. Only the court can decide if the Council has been negligent and whether the Council is entitled to rely on this statutory defence.
12. 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 Miss B’s position to seek a remedy in the courts, directly or through her insurers. I do not consider there is any exceptional reason why Miss B cannot do this.
13. So, we will not investigate this complaint.

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Final decision

14. We will not investigate Miss B’s complaint because it is reasonable for her to pursue this matter at court.

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Investigator's decision on behalf of the Ombudsman