Summary: We will not investigate Mr X’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 X to pursue his compensation claim at court.

The complaint

1. Mr X complained to the Council about damage to his car after hitting a pothole in the road. Mr X is unhappy with the Council’s response and explanation of road conditions and that it declined to pay him 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 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

4. I considered information provided by the complainant.
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 X has received the Council’s decision on his compensation claim. Mr X may now pursue his claim by taking the Council to court.
9. The courts are in the best position to decide the issue complained about including how the Council inspected and prioritised this pothole for repair. Also, unlike the courts, we have no powers to enforce an award for damages.
10. We would therefore usually expect someone in Mr X’s position to seek a remedy in the courts. The initial fee for making a claim is relatively modest. I therefore find it is reasonable for Mr X to take the matter to court and we will not investigate.

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Final decision

11. We will not investigate Mr X’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