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

The complaint

1. Miss B complains her vehicle was damaged by a large pothole which the Council knew about but did not repair until the day after the incident. Miss B says the Council has wrongly refused her claim for compensation. Miss B would like the Council to reimburse her repair costs of £250.

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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 Miss 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. Miss B has received the Council’s decision on her compensation claim. Miss B may pursue her 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 followed a reasonable system of highway inspection and repair. Also, unlike the courts, we have no powers to enforce an award of damages.
10. So, I would usually expect someone in Miss B’s position to seek a remedy in the courts. I find it is reasonable for Miss B to do this and the initial fee for making a claim is relatively modest.
11. So, we will not investigate this complaint.

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Final decision

12. We will not investigate Miss 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