Summary: We will not investigate Miss B’s complaint that her car was damaged by a large pothole which the Council had failed to repair. This is because it is reasonable for Miss B to pursue her compensation claim at court.

The complaint

1. Miss B complains her car was damaged on two occasions by a hazardous pothole which the Council had failed to identify and repair within a reasonable timeframe. Miss B says multiple vehicles were affected and the Police attended the second incident, but the Council has refused her claim for compensation. Miss B does not consider the Council has properly investigated the matter or taken account of all the evidence.
2. Miss B would like the Council to take a range of actions including paying her compensation for her repair costs and a goodwill payment for the inconvenience and distress she suffered.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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

5. I considered information provided by Miss B.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. 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.
8. 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.
9. Our role is to consider complaints of administrative fault. Negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
10. Miss B has received the Council’s decision on her compensation claim. Miss B may pursue her claim by taking the Council to court.
11. Miss B’s complaint is ultimately a challenge to the strength of the Council’s defence to her claim. The courts are in the best position to decide this matter including how the Council inspected this highway and assessed this defect for repair. 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 inspection and repair. Also, unlike the courts, we have no powers to enforce an award of damages.
12. 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. Miss B can also seek legal advice if needed.
13. So, we will not investigate this complaint.

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Final decision

14. 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