St Helens Metropolitan Borough Council (24 014 795)
Category : Transport and highways > Highway repair and maintenance
Decision : Closed after initial enquiries
Decision date : 21 Nov 2024
The Ombudsman's final decision:
Summary: We will not investigate Mrs B’s complaint that her car was damaged by a pothole. This is because it is reasonable for Mrs B to pursue her compensation claim by taking the Council to court.
The complaint
- Mrs B complains her car was damaged by a pothole which the Council failed to repair. Mrs B says the Council’s insurers have wrongly refused her compensation claim.
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 Mrs B.
- I considered the Ombudsman’s Assessment Code.
My assessment
- Mrs B complains her car was damaged because the Council failed to maintain a road it is responsible for. So, in effect, Mrs B’s complaint is that the Council has been negligent.
- The Council has considered Mrs B’s claim for compensation but did not accept the Council is liable for the damage to her car. Mrs B may pursue her claim by taking the Council to court.
- 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.
- The Council has relied on the statutory defence that it could not reasonably have been expected to put right any defects before the incident happened.
- Only the court can decide if the Council has been negligent and whether the Council is entitled to rely on this statutory defence.
- 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 Mrs B’s position to seek a remedy in the courts, directly or through her insurers.
- I do not consider it is unreasonable for Mrs B to do this. So, we will not investigate this complaint.
Final decision
- We will not investigate Mrs B’s complaint because it is reasonable for her to take the Council to court.
Investigator's decision on behalf of the Ombudsman