Summary: We will not investigate Mr B’s complaint that his car was damaged by a large pothole which the Council had failed to identify and repair. This is because it is reasonable for Mr B to take the Council to court.

The complaint

1. Mr B complains his car was damaged by a large pothole which the Council had failed to identify and repair. Mr B says the Council has wrongly rejected his claim for compensation and has not fully justified its decision. Mr B would like the Council to reconsider its decision and if appropriate reimburse his repair costs. Mr B would also like the Council to review its inspection procedures.

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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 Act 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

4. I considered information provided by Mr B.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council as a local highways authority has a statutory duty to maintain adopted streets. The Council is expected to routinely monitor the state of highways and carry out repairs where necessary. But importantly, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
7. We do not normally investigate complaints about vehicle damage caused by highway disrepair. This is because in effect such complaints are that an organisation has been negligent.
8. Our role is to consider complaints of administrative fault. Negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
9. The Council has reviewed its insurer’s decision on Mr B’s claim and has not changed its decision. The next step is for Mr B to pursue his claim by taking the Council to court.
10. Only a court can decide if the Council was negligent including whether the Council is entitled to rely on the statutory defence that it followed a reasonable system of inspection and repair. The court is in the best position to consider Mr B’s concerns about how the Council inspected this highway and the evidence the Council has provided to support its decision.
11. Also, unlike the courts, we have no powers to enforce an award of damages.
12. So, I would usually expect someone in Mr B’s position to seek a remedy in the courts. I find it is reasonable for Mr B to do this and the initial fee for making a claim is relatively modest. Mr B can also seek legal advice if needed.
13. So, we will not investigate this complaint.

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Final decision

14. We will not investigate Mr B’s complaint because it is reasonable for him to take the Council to court.

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Investigator's decision on behalf of the Ombudsman