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

The complaint

1. Mr C complains his car was damaged by a large pothole which the Council had failed to repair. Mr C says the Council refused his compensation claim without giving proper consideration to the evidence he provided. Mr C would like the Council to accept it was at fault, reimburse his repair costs, and make a goodwill payment for his time pursuing this matter.

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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 C and the Council.
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. Mr C has received the Council’s decision on his compensation claim. Mr C may pursue his claim by taking the Council to court.
10. Only a court can decide this matter including how the Council inspected this highway and assessed this defect for repair.
11. The thrust of Mr C’s complaint is that the Council was at fault for failing to identify this defect for repair after the defect was reported by a member of the public and during several inspections before his incident. Whilst Mr C does not consider the Council has responded to each of his specific points, it is clear the Council’s position is that it did not identify any defects which met the Council’s criteria for repair during these inspections.
12. This complaint is ultimately a challenge to the strength of the Council’s defence to Mr C’s compensation claim and is a matter for a court to decide. 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.
13. Also, unlike the courts, we have no powers to enforce an award of damages.
14. So, I would usually expect someone in Mr C’s position to seek a remedy in the courts. I find it is reasonable for Mr C to do this and the initial fee for making a claim is relatively modest. Mr C can also seek legal advice if needed.
15. So, we will not investigate this complaint.

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Final decision

16. We will not investigate Mr C’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