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

The complaint

1. Mr B complains his vehicle was damaged by a large pothole which the Council had failed to repair. Mr B says the Council has refused his compensation claim and has relied on the standard legal defence despite clear evidence he has provided. Mr B says this pothole was dangerous and should have been identified and repaired by the Council through a reasonable inspection system.

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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 Mr 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. Mr B 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. Only the court can decide if the Council has been negligent and whether the Council is entitled to rely on the statutory defence that it could not reasonably have been expected to have repaired this defect before the incident. Also, unlike the courts, we have no powers to enforce an award of damages.
10. So, I would usually expect someone in Mr B’s position to seek a remedy in the courts. I find it is reasonable and proportionate to Mr B’s repair costs, which were over £700, for Mr B to do this.
11. So, we will not investigate this complaint.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman