Summary: The Ombudsman will not investigate this complaint about damage caused to the complainant’s car by a pothole. This is because complaints about damage need to be determined in court.

The complaint

1. The complainant, whom I refer to as Mr X, says the Council failed to maintain the road and is responsible for damage caused to his car. Mr X wants the Council to cover the £150 it cost to repair his car.

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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. The courts decide issues relating to damage and negligence.

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How I considered this complaint

5. I read the complaint and the reply from the Council. I invited Mr X to comment on a draft of this decision.

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What I found

Highways defence

6. Councils have a duty to maintain the highway. The law says a council will not be responsible for damage if it can demonstrate it had taken reasonable steps to keep the highway safe and in a good condition. The law also says that if action is taken against a council the courts should consider issues such as the character of the highway and whether the council knew, or could reasonably be expected to have known, there was a defect.

What happened

7. Mr X’s car hit a pothole on 24 August 2019. Mr X’s car was damaged. He had to be taken home by the AA and spend £150 on repairs. He says the pothole was very large. He also says he was told that the pothole had been reported to the Council.
8. Mr X asked the Council to cover the cost of the repairs. In response the Council said it does quarterly inspections and was unaware of the pothole. It said the last inspection, before 24 August, was on 28 May and no defects had been seen. It declined to pay compensation because the damage had not been caused by Council negligence. It suggested Mr X might be able to claim on his own insurance.

Assessment

9. I will not start an investigation because this is a matter for the courts. It is reasonable to expect Mr X to go to court because the Ombudsman does not act as an appeal body and does not determine claims for damages or make decisions about liability and negligence. It would be for the courts to decide if the Council has been negligent and whether it should compensate Mr X for the damage.

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Final decision

10. I will not start an investigation because complaints of negligence causing damage need to be determined in court.

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Investigator's decision on behalf of the Ombudsman