The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s failure to repair a pothole. This is because it is reasonable for Mr B to take action through the courts.
The complaint
The complainant, who I will refer to as Mr B, complains that his car was damaged after hitting a large pothole which the Council had failed to repair. Mr B complains the Council has responded to his complaint by referring to the wrong road. Mr B also says the Council has wrongly said the pothole has been repaired. Mr B is concerned that the pothole could cause fatal injuries to a road user.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)
How I considered this complaint
I considered information provided by Mr B.
I considered the Ombudsman’s Assessment Code.
My assessment
I will not investigate Mr B’s complaint that his car was damaged due to the Council’s failure to repair the pothole. This is because this is a negligence complaint.
Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings. The Council has a statutory defence if it can show it could not reasonably have been expected to put right any defects before the incident happened. Only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
I cannot decide whether an organisation has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Mr B’s position to seek a remedy in the courts, directly or through his insurers. I do not consider there is any exceptional reason why Mr B cannot do this if the Council’s insurer does not accept liability for the damage.
Mr B is concerned that the Council has not repaired the pothole. Information Mr B has provided from the Council’s website indicates the Council has ordered the works to be done. If there is delay by the Council Mr B may apply to the magistrates court for an order to be made under section 56 of the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway.
Mr B may use this process to try to get the Council to repair the road. I find it is reasonable for Mr B to do this. The court is in the best position to decide whether the Council has met its legal duty to maintain the highway. Also, unlike the Ombudsman, the court can order the Council to do the required work.
Mr B also complains about the Council’s response to his complaint. But, an investigation solely into the handling of a complaint is not justified if we are not investigating the substantive matter.
Final decision
For the above reasons, we will not investigate this complaint.
Investigator's decision on behalf of the Ombudsman