Summary: We will not investigate this complaint about highway maintenance and repair because the court is better placed to consider the complaint and it is reasonable to expect Mr Y to go to court about the matter.

The complaint

1. Mr Y complains the Council failed to maintain the highway, leading to a pothole which caused damage to Mr Y’s car. He is unhappy that the Council has denied liability for the damage.
2. Mr Y says the damage has cost him approximately £900 to repair his vehicle.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. The law 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

5. I considered information Mr Y provided and the Ombudsman’s Assessment Code.

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My assessment

6. Mr Y has complained that a pothole on a Council maintained road has caused damage to his vehicle. He has contacted the Council to try to make a claim for the cost of the repairs to his vehicle of approximately £900. The Council in this case however has denied liability, suggested that a different body is responsible for the road maintenance in the area. However, Mr Y says he has been told by the other body that it is the Council which is responsible.
7. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
8. We cannot decide who has liability or which body should award damages. This is however an issue which the courts can decide. Mr Y may wish to choose one body and consider pursuing a claim if he does not wish to make two legal claims, however we could not advise him which body to pursue as this would be a legal matter. Consequently, any claim for damages, such as costs for repairs, which Mr Y considers the Council or any other body to be responsible for, are matters more appropriately dealt with by the courts. Consequently, Mr Y may wish to seek independent legal advice.
9. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. He may also be able to claim back any costs he incurs through the claims process. It is therefore reasonable for Mr Y to be expected to use his right to go to court about this matter.
10. It is therefore reasonable for Mr Y to pursue his claim through either the Council’s insurer or the courts. We will not investigate this complaint.

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Final decision

11. We will not investigate Mr Y’s complaint because the court is better placed to consider the complaint and it is reasonable to expect Mr Y to go to court about the matter.

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Investigator's decision on behalf of the Ombudsman