Summary: We will not investigate Mr X’s claim for damages to his car. This is because it does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable to expect Mr X to take his claim to court.

The complaint

1. In summary Mr X says his car was damaged when he drove over a pothole on a Council maintained road. Mr X also says the Council has neglected its duty to maintain the road.
2. Mr X would like the Council to pay him £424.17 for repair costs plus £2000 for the stress and lost time he says he has suffered. He would also like a review and improvements to the road maintenance and inspection standards.

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The Ombudsman’s role and powers

3. We provide a free service but must use public money carefully. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
4. 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

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

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My assessment

6. The Council’s insurers have denied the Council is liable for the damage caused to Mr X’s car.
7. The Council considers its maintenance and inspection regime is satisfactory and has provided dates of both ‘walked’ and ‘driven road inspections’. The Council has separately apologised for the delay in progressing Mr X’s claim. It has advised him of his right to seek legal advice.

8. The Council as a local highways authority has a statutory duty to maintain roads. 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.
9. 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.
10. 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.
11. Mr X may use this process to try to get the Council to repair the road. I find it is reasonable for Mr X to do this. The court is in the best position to decide whether the Council has met its legal duty to maintain the highway. Also, unlike the Ombudsman, the court can order the Council to do the required work.
12. In terms of Mr X claiming reimbursement for his repair costs, we would also normally expect him to pursue this via the courts. This is because it is essentially a negligence claim, and only the courts can decide if the Council is liable for any damage. Further, unlike the Ombudsman, the courts have the power to award damages against the Council. So, we will not investigate as it is reasonable to expect Mr X to take his claim to court.
13. With respect to the delay in determining Mr X’s claim and other administrative issues, we will not investigate. This is because it is not a good use of public resources to investigate side issues in complaints if we are not considering the substantive matter.

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Final decision

14. I will not investigate. This is because it is reasonable to expect Mr X to go to court to decide the Council’s liability for his claim.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman