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

The complaint

1. Mrs 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.

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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 Mrs 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. Mrs 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 the claim as it did not accept that it was liable for the damage. It says it has a reasonable inspection regime in place to identify and repair any defects in the road and it therefore believes it can rely on the special defence provided by Section 58 of the Highways Act to reject the claim.
8. We cannot decide whether the Council is liable for the damage to Mrs X’s car and have no powers to enforce an award of damages. Mrs X may pursue her claim by taking the Council to court and I have seen nothing to show it would be unreasonable to expect her 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 referred to above. 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.

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Final decision

10. We will not investigate Mrs 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