Summary: The Ombudsman will not investigate Ms C’s complaint about the Council’s failure to pay compensation when her car was damaged by potholes. Ms C’s complaint amounts to a claim of negligence by the Council. The Ombudsman cannot make rulings on negligence, which is a legal issue for the courts. It would be reasonable for Ms C to pursue the matter in court.

The complaint

1. Ms C says her car was damaged when she hit two potholes. She says when she complained to the Council, it referred her to its insurers who seemed disinterested. The Council’s insurers told her the stretch of the road in question had been checked previously and nothing had been reported. The insurers decided the Council was not liable for the damage to Ms C’s car and was not entitled to any compensation.
2. Ms C has also complained about the Council’s failure to respond to correspondence she sent after it rejected her claim.
3. Ms C says she has lost a lot of money in order to get her car repaired. Ms C wants the Council to compensate her for the financial loss incurred

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also restrictions on what we can investigate.
5. 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

6. I considered the complaint from Ms C and comments provided to the Ombudsman by the Council.

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What I found

7. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. They are expected to routinely monitor the state of the highways for which they are responsible and to carry out repairs where necessary.
8. The Council has rejected Ms C’s insurance claim because it considers it has complied with its duties under the Highways Act. Ms C disagrees and believes the Council is responsible for the damage to her car.
9. Ms C’s complaint amounts to an allegation of negligence by the Council, that the Council has failed to properly maintain the highway, and so is liable for her car damage. The Ombudsman cannot make rulings on negligence. Only a court can decide on negligence, which is a legal matter, requiring interpretation of the law. A court can also make any award for damages, if it considers a council has been negligent. So, I consider it would be reasonable for Ms C to pursue the remedy she seeks in court.
10. Furthermore, Section 58 of the Highways Act 1980 gives councils the right to put forward in court a defence against claims for damage due to the condition of the highway. The Ombudsman should not remove that right from the Council by investigating Ms C’s complaint.
11. I understand Ms C has emailed the Council’s insurer about its decision to reject her claim. She says it has not replied. The Council says its insurer has already acknowledged Ms C’s email and will be responding to her.
12. The Ombudsman cannot be involved in that complaint process, or in any further correspondence Ms C may have with the insurer. If Ms C wants to complain to the Council about its insurer’s decision, she might do so formally using the Council’s internal complaint process. It would be for the Council to make its decision on any complaint Ms C chooses to make. If Ms C is dissatisfied with the outcome of the complaint, for the reasons I have given above, I consider it would then be a matter for the courts to determine and not the Ombudsman.

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Final decision

13. The Ombudsman will not investigate this complaint. This is because Ms C’s core complaint is an allegation of negligence by the Council causing damage to her car. The appropriate route for her to pursue the matter would be in the courts.

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Investigator's decision on behalf of the Ombudsman