Summary: We will not investigate this complaint about damage to Miss X’s car from hitting a pothole in the road. This is because it is reasonable for Miss X to pursue her claim for repair costs through the courts.

The complaint

1. Miss X complains the Council failed to maintain the road properly and says her car was damaged by a pothole. She wants the Council to reimburse the repair costs and pay compensation.

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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 Miss X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary.
7. Miss X complains her car was damaged by a pothole because the Council failed to maintain the road. She made a claim to the Council, but the Council refused her claim as it did not accept it was liable for the damage. Miss X then complained, but the Council told her its inspection found no defect. Miss X disputes the Council’s findings and says the pothole has been repaired four times since her car was damaged.
8. We cannot decide whether the Council is liable for the damage to Miss X’s car and have no powers to enforce an award of damages. Miss X may pursue her claim by taking the Council to court and I have seen nothing to show it would be unreasonable to expect them to do so.
9. It would in any event not be appropriate for us to stop the Council from disputing the claim by using the special defence provided by Section 58 of the Highways Act. Only the courts can decide if the defence applies in Mrs X’s case and they will consider this point as part of any claim.
10. Miss X is also unhappy with the way the Council dealt with her complaint. It is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.

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Final decision

11. We will not investigate Miss X’s complaint because it is reasonable for her to pursue her claim for repair costs by taking the Council to court.

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Investigator's decision on behalf of the Ombudsman