Summary: We will not investigate Mr B’s complaint about the Council’s refusal of his compensation claim after his car was damaged by a pothole. This is because it is reasonable for Mr B to pursue his compensation claim at court.

The complaint

1. Mr B complains his vehicle was damaged by a large pothole which the Council had failed to repair or warn motorists about. Mr B says the Council did not assess the risk posed by this pothole correctly and has wrongly refused his 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 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 has received the Council’s decision on his compensation claim. Mr B may now pursue his claim by taking the Council to court.
9. Only a court can decide if the Council was negligent including whether the Council is entitled to rely on the statutory defence that it could not reasonably have been expected to put right this defect before Mr B’s 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 for Mr 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. Mr B may also seek legal advice about pursuing a claim.
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