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

The complaint

1. Mr B complains his car was damaged by a dangerous pothole. Mr B says the Council was aware this pothole had caused damage to vehicles but had failed to clearly mark this pothole at the time of his incident or make it safe for motorists, Mr B says the Council has failed to maintain this highway and has wrongly refused his claim for compensation. Mr B does not consider it is reasonable to expect him to pursue this matter at court and he would like the Council to reimburse his repair costs of £90.

Back to top

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)

Back to top

How I considered this complaint

4. I considered information provided by Mr B.
5. I considered the Ombudsman’s Assessment Code.

Back to top

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. Mr B has received the Council’s insurer’s decision on his compensation claim. Mr B may pursue his claim by taking the Council to court.
10. Only a court can decide if the Council was negligent including if 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.
11. So, I would usually expect someone in Mr B’s position to seek a remedy in the courts. I have considered Mr B’s comments, but I find it is reasonable for Mr B to take the Council to court. The initial fee for making a claim is relatively modest and only the courts can decide the matter complained about and provide the outcome Mr B seeks.
12. So, we will not investigate this complaint.

Back to top

Final decision

13. We will not investigate Mr B’s complaint because it is reasonable for him to take the Council to court.

Back to top

Investigator's decision on behalf of the Ombudsman