Summary: We will not investigate this complaint about the Council’s maintenance of the highway generally, or an associated claim for compensation, because of a poor road surface. This is because X has an alternative legal remedy available to them, to address their complaints. And given only the courts can decide on both aspects, and we cannot in either case, it is reasonable to expect them to use their legal remedy.

The complaint

1. X complained the Council was at fault in not properly maintaining the road surface they use. They said because of this their car fell into a pothole and they were physically injured as a result. They want the Council to carry out proper repairs to the road surface.

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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)
4. If a person considers that a highways authority has failed to maintain a highway, it is usually reasonable for the person affected to apply to the Magistrates Court for an order to be made under section 56 of the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway. There might be some cost to court action. However, that does not mean it is unreasonable to take court action.
5. Negligence claims and interpreting the law around civil liability are generally best decided by a court where the Council does not accept insurance liability. Only a court can decide whether the problem should have been dealt with by the Council before it caused damage to a person’s property, or if it is liable to pay damages for a person’s loss.

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. X complained to us concerned about the poor state of the road surface they were using. They said the presence of multiple potholes was evidence the Council was not adequately repairing it. X also made a claim for compensation to the Council, saying it was liable for damages, because of an injury they sustained, after their car fell into a pothole.
9. I will not investigate either aspect of X’s complaint.
10. 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 the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
11. There is an alternative legal remedy available to X to apply to the Magistrates Court for it to make an order, requiring the Council to carry out the repairs needed to the road they are concerned about. And given it is only the court that can require this, unlike us, it would be reasonable to expect X to use this alternative legal remedy to achieve what they are looking for.
12. Neither could I consider X’s claim for compensation, because only a court can decide on liability and award damages for personal injury. Similarly, because we cannot achieve this outcome, it is reasonable to expect X to make a civil claim, through their insurers if appropriate.

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Final decision

13. We will not investigate X’s complaint because they have an alternative legal remedy through the courts, that can achieve the outcome they are seeking. And noting it is only the courts that can achieve this outcome, it is reasonable to expect them to use that remedy.

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Investigator's decision on behalf of the Ombudsman