Summary: We will not investigate Mr X’s complaint about the Council’s refusal of liability for pothole damage to his vehicle. We cannot investigate if Mr X has made a court claim regarding the incident. Even if he has not started such court action, we would not investigate because it is for the courts to establish liability in property damage matters. It would be reasonable for Mr X to pursue his claim in court if he has not already done so.

The complaint

1. Mr X drove over a pothole and damaged his vehicle’s wheel. Mr Y complains on Mr X’s behalf that the Council has declined to accept responsibility for the damage to Mr X’s vehicle.
2. Mr Y says Mr X has suffered a financial loss of £656.98 from replacing the damaged wheel. Mr X wants the Council to accept responsibility for the pothole and maintaining the road and that the pothole was previously reported by someone else, and provide information on its annual road inspection.

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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. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
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 information provided by Mr X and Mr Y, and the Ombudsman’s Assessment Code.

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My assessment

7. Mr X has provided a copy of a court claim form, indicating he has lodged a legal claim against the Council for the damage to his vehicle. Where someone has started court action on a matter which is also the core reason for bringing a complaint to us, the law says we cannot investigate that complaint.
8. Even if Mr X has not started court action on his claim against the Council for his vehicle’s damage, we would still not investigate the complaint. This is because we cannot normally investigate when someone could take a matter to court. We can exercise discretion to investigate but there would be no good reasons to do so here. I say this because the Ombudsman cannot establish liability in complaints about property damage. Such claims are legal matters for councils’ insurers and, ultimately, for the courts if an insurer denies liability. Only the courts can determine if the Council’s highway maintenance was negligent, if it is legally liable for the damage caused to Mr X’s vehicle, and if any remedy is due. Unlike the Ombudsman who can only issue recommendations, the courts can also make binding orders to enforce their decisions and remedies. The court process is a low-cost legal procedure open to anyone to make this kind of claim. For these reasons, it would be reasonable for Mr X to use the court to pursue his claim, if he has not already done so, and we will not investigate.
9. Section 58 of the Highways Act 1980 also gives councils the right to put forward a defence in court against claims for damage from the condition of their highways. We would not remove the right of the Council to use and rely on that defence by investigating Mr X’s complaint.
10. None of the other issues Mr X mentions in his complaint, such as the Council not providing information about its road maintenance and not accepting that others had reported the same pothole, are severable from his core claim that the Council should be liable for his vehicle damage. If he has not already done so, Mr X may challenge the Council’s position in court, including whether it maintained the road in line with its relevant legal duties, or responded appropriately to other reports about the pothole.

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Final decision

11. We will not investigate Mr X’s complaint because:
• if he has put his damages claim before a court, we cannot investigate his complaint as he has started court action on the matter;
• if he has not started court action, we would not investigate because it is for the courts to establish liability in property damage matters, and it would be reasonable for Mr X to take his claim to court.

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Investigator's decision on behalf of the Ombudsman