Surrey County Council (25 002 139)
Category : Transport and highways > Highway repair and maintenance
Decision : Closed after initial enquiries
Decision date : 11 May 2025
The Ombudsman's final decision:
Summary: We will not investigate Mrs B’s complaint that her car was damaged due to the Council’s failure to repair a dangerous pothole. This is because it is reasonable for Mrs B to take the Council to court.
The complaint
- Mrs B complains her car was damaged after hitting a large pothole which the Council had failed to repair or make safe. Mrs B says the Council has 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
- 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.
- 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. 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.
- Only the court can decide if the Council has been negligent and whether the Council is entitled to rely on this statutory defence.
- Also, unlike the courts, we 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. I find it is reasonable 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