Summary: We will not investigate Mrs B’s complaint that her car was damaged by a large pothole. This is because it is reasonable for Mrs B to take the Council to court.

The complaint

1. Mrs B complains her car was damaged by a large pothole which the Council had failed to repair. Mrs B says the Council has wrongly refused her compensation claim. Mrs B would like the Council to accept responsibility and reimburse her repair costs of £260.

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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 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. Mrs B has received the Council’s decision on her compensation claim. Mrs B may pursue her claim by taking the Council to court.
9. 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. Also, unlike the courts, we have no powers to enforce an award of damages.
10. So, I would usually expect someone in Mrs B’s position to seek a remedy in the courts. I find it is reasonable for Mrs B to do this. The initial fee for making a claim is relatively modest and help with fees is available for people on a low income. Mrs B may also seek legal advice if she is concerned about the process.
11. So, we will not investigate this complaint.

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Final decision

12. We will not investigate Mrs 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