Summary: We will not investigate Ms X’s complaint that her car was damaged by a pothole. This is because it is reasonable for Ms X to pursue the matter at court.

The complaint

1. Ms X complains the Council failed to properly maintain a road which resulted in her vehicle being damaged by a pothole. She wants the Council to pay reasonable expenses and repair the road.

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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 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. Ms X complains her car was damaged by a pothole because the Council failed to maintain the road. She complained to the Council. The Council told her the previous inspection found no defect and no defects were reported in the 12 months before her accident. Ms X alleges defects were reported and the Council later carried out repairs in the same area. She is unhappy the Council provided incorrect information but the injustice she describes stems from the accident itself rather than the information the Council provided about repairs.
8. The Council has considered Ms X’s claim for compensation but did not accept that it is liable for the damage to the car.
9. We cannot decide whether the Council has complied with its duty under Section 41 of the Highways Act and have no powers to enforce an award of damages. Any dispute about the Council’s liability for the damage is for the courts. Ms 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. For these reasons, we will not investigate this complaint. Ms X is also unhappy with the way the Council dealt with her complaint. But 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

10. We will not investigate Ms X’s complaint because it is reasonable for her to pursue her expenses claim by taking the Council to court.

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Investigator's decision on behalf of the Ombudsman