Summary: We will not investigate Mrs X’s complaint about the Council’s maintenance of a road. This is because it is reasonable for Mrs X to go to court.

The complaint

1. Mrs X complains the Council failed to address highway disrepair resulting in damage to her wheel and tyre.
2. Mrs X wants the Council to reconsider her claim, reimburse her for her financial losses and improve its complaints handling processes.

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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 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

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

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My assessment

7. This complaint concerns the Council’s denial of liability under section 58 of the Highways Act 1980. The Council advises it had a reasonable inspection and maintenance system in place. It relied on its statutory defence and denied liability for Mrs X’s claim.
8. Mrs X disputes the Council’s position. She says she has obtained information showing many pothole claims and repairs on the road after her incident. Mrs X suggests the defect was longstanding and the inspection regime is inadequate
9. If Mrs X considers the road still needs repairs, she has the right to apply to a Magistrates’ court for an order. This could require the Council to take whatever action is needed to bring a highway up to standard.
10. Further, only the courts can decide whether the Council has maintained the highway properly or is liable for any damages arising from alleged failure to repair the highway. The Ombudsman has no power to determine who is legally liable for Mrs X’s claim nor can we compel the Council to reimburse Mrs X. It is therefore reasonable for Mrs X to go to court and I will not investigate.
11. I note Mrs X’s concerns about the handling of her claim. However, this issue arises because of her highway damages claim. It is not a proportionate use of our resources to investigate the Council’s complaint handling when we are not investigating the substantive issues.

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Final decision

12. We will not investigate this complaint because it is reasonable for Mrs X to go to court.

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Investigator's decision on behalf of the Ombudsman