Summary: We will not investigate Mr X’s complaint that the Council has failed to properly maintain a road in its area, resulting in damage to his vehicle. This is because it would be reasonable for Mr X to take the matter to court.

The complaint

1. Mr X complains about the state of a road in the Council’s area. He says the Council has failed to maintain the road properly and this caused damage to his vehicle, which he would like the Council to pay to repair.

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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 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. Mr X complains his car was damaged by a pothole because the Council failed to maintain the road. He contacted the Council about the incident, and it asked him for further information. Mr X says the Council has not replied to his emails.
8. I understand Mr X is frustrated about the Council’s failure to respond to him, but the injustice he claims stems from the damage to his car and we cannot decide whether the Council is liable for this; we also have no powers to enforce an award of damages. Mr X may pursue this claim by taking the Council to court and I have seen nothing to show it would be unreasonable to expect him to do so.
9. I appreciate Mr X is also unhappy with the condition of the roads in his area but whether the Council has met its duty under Section 41 of the Highways Act 1980 requires interpretations of the law and this is not something we can provide.
10. If Mr X wishes to pursue the issue it would be reasonable for him to serve notice on the Council to carry out repairs. Should it fail to do so, Mr X may apply to the magistrates’ court for an order under section 56 of the Highways Act 1980 requiring it to take action. The Council would be bound by any order made by the magistrates’ court.

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Final decision

11. We will not investigate this complaint. This is because it would be reasonable for Mr X to serve notice on the Council, make a claim for damages to the Council’s insurers and take the matter to court.

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Investigator's decision on behalf of the Ombudsman