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

The complaint

1. Ms B says her car was severely damaged and had to be ‘written off’ after hitting a large pothole which the Council had failed to repair. Ms B says the Council has wrongly refused her claim for 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 Ms B.
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 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.
8. Ms 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.
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. Also, unlike the courts, we have no powers to enforce an award of damages.
11. So, I would usually expect someone in Ms B’s position to seek a remedy in the courts. I find it is reasonable and proportionate to Ms B’s repair costs for Ms B to do this.
12. So, we will not investigate this complaint.

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Final decision

13. We will not investigate Ms B’s complaint because it is reasonable for her to take the Council to court.

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Investigator's decision on behalf of the Ombudsman