Summary: We will not investigate Mr B’s complaint that his car was damaged by a large pothole which the Council had failed to repair. This is because it is reasonable for Mr B to take the Council to court if needed. An investigation solely into the Council’s handling of Mr B’s complaint is not justified.

The complaint

1. Mr B complains his car was damaged by a large pothole on a lane which is in a dangerous condition. Mr B says in response to his complaint the Council admitted this road is scheduled for re-surfacing and said its insurer will consider his claim for vehicle damage. But, the Council did not uphold his complaint. Mr B would like the Council to pay his repair costs of £225 and carry out repairs to this road as soon as possible, or lower the speed limit until the road is re-surfaced.

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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.
8. Our role is to consider complaints of administrative fault. Negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
9. The Council was not at fault for referring Mr B’s correspondence to the Council’s insurer, which is in the best position to decide Mr B’s request for compensation for the damage to his vehicle.
10. If the Council’s insurer does not provide an outcome Mr B is satisfied with, Mr B may pursue his claim by taking the Council to court. I find it is reasonable for Mr B to do this. Only a court can decide if the Council was negligent, and if so, make an order for damages. So, we will not investigate Mr B’s complaint about the damage to his vehicle.
11. Mr B feels aggrieved that his complaint was recorded as not upheld. But, the substantive matter is best decided by the Council’s insurer rather than through the Council’s complaints procedure. An investigation solely into how the Council recorded the outcome of Mr B’s complaint is not justified.
12. So, we will not investigate this complaint.

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Final decision

13. We will not investigate Mr B’s complaint because it is reasonable for Mr B to pursue his claim at court if needed. An investigation solely into the Council’s handling of Mr B’s complaint is not justified.

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Investigator's decision on behalf of the Ombudsman