Summary: We will not investigate Mr B’s complaint that his car was damaged by a pothole. This is because it is reasonable for Mr B to pursue his compensation claim by taking the Council to court.

The complaint

1. Mr B complains his car was damaged after hitting a pothole which the Council had failed to repair. Mr B would like the Council to pay him compensation for his 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 Mr B.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. We do not normally investigate complaints about vehicle damage caused by highway disrepair. This is because in effect such complaints are that an organisation has been negligent. Our role is to consider complaints of administrative fault. Negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
7. If the Council does not accept it is liable for the damage to Mr B’s car, Mr B may pursue his 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. Also, the Council has a statutory defence if it can show it could not reasonably have been expected to put right this defect before the incident happened.
9. Only the court can decide if the Council has been negligent and whether the Council is entitled to rely on this statutory defence.
10. Also, unlike the courts, we have no powers to enforce an award of damages.
11. So, I would usually expect someone in Mr B’s position to seek a remedy in the courts if needed.
12. I find it is reasonable for Mr B to do this. The fee for making a court claim is relatively modest and help with fees is available for people on a low income.
13. So, we will not investigate this complaint.

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Final decision

14. We will not investigate Mr B’s complaint because it is reasonable for him to take the Council to court.

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Investigator's decision on behalf of the Ombudsman