Summary: We will not investigate this complaint about the Council’s handling of an insurance claim for damage to Ms X’s car caused by a pothole in the highway surface. The Council has rejected liability and the courts are better placed to determine whether the claim should be upheld.

The complaint

1. Ms X complained that her car was damaged by a pothole in the public highways and that her claim against the Council’s insurance had not been determined within 3 months as she was advised it would be.

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The Ombudsman’s role and powers

2. 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

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Ms X suffered damage to her car from a pothole and submitted a claim against the Council’s public liability insurance in December 2025. She was advised in January that the claim would take up to 3 months to determine but she had not heard anything by April 2026. She made a formal complaint and the Council told her that it was still awaiting information form the highway authority.
6. Ms X was dissatisfied with the outcome and asked for her complaint to be progressed to Stage 2 of the complaints procedure. She did not receive a response by early June and complained to us to obtain an outcome. The Council issued its decision on her claim less than two weeks after she complained to us but did not complete a Stage 2 response until September.
7. The Council told Ms X that it denied liability for the damage to her car and referred to its statutory defence against liability claims under s.58 of the Highways Act 1980. It stated that no defects were detected on previous inspections and that its insurers rejected the claim. It advised Ms X that she could seek legal advice if she wished to contest the claim via the courts.
8. The legislation from which the Ombudsman takes her powers also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
9. Negligence claims and interpreting the law around legal torts are generally best decided by a court. Only a court can decide whether the problem should have been dealt with by the council before it caused you harm or if the council is liable to pay “damages” for the loss or injury you have suffered.
10. The Council delayed in deciding the insurance claim longer than the three months which it advised and its Stage 2 response was also late. We will not investigate these matters. The normal period for deciding insurance claims in the public and private sectors is up to six months or a year in complex cases.
11. It is normal procedure for persons suffering damages or personal injury caused by a council or its contractors to submit an insurance claim against the Council. This will then be treated as a claim, rather than a complaint and passed on to its insurers or legal team for a response on liability. In this case the Council accepted Ms X’s concern about the delay as a formal complaint but it was not required to do so.
12. It is reasonable from Ms X to pursue her claim by way of the small claims court and she is still well within the time limits for pursuing this remedy.

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Final decision

13. We will not investigate this complaint about the Council’s handling of an insurance claim for damage to Ms X’s car caused by a pothole in the highway surface. The Council has rejected liability and the courts are better placed to determine whether the claim should be upheld.

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Investigator's decision on behalf of the Ombudsman