Summary: We will not investigate Mr X’s complaint that his car was damaged by a pothole which the Council had failed to repair. This is because it is reasonable for Mr X to take the Council to court.

The complaint

1. Mr X complains the Council rejected his claim for compensation to cover the cost of repairing damage to his car tyre caused by a pothole. Mr X says the Council has wrongly refused his claim and he would like the Council to reimburse his repair costs of almost £200.

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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 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

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

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My assessment

6. The Council, as a local highways authority, has a statutory duty to maintain adopted streets. The Council is expected to routinely monitor the state of highways and carry out repairs where necessary. But importantly, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
7. We do not normally investigate complaints about vehicle damage caused by highway disrepair. This is because such complaints are, in effect, 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.
8. Mr X may pursue his 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.
9. 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.
10. Only the court can decide if the Council has been negligent and whether the Council is entitled to rely on this statutory defence. Unlike the courts, we have no powers to enforce an award of damages.
11. For these reasons, it is reasonable to expect Mr X to seek a remedy in the courts. We will not investigate this complaint.

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Final decision

12. We will not investigate Mr X’s complaint because it is reasonable to expect him to take the Council to court.

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Investigator's decision on behalf of the Ombudsman