The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint the Council fails to maintain the highway and should accept his claim that it twice caused damage to his vehicle’s tyres at the same location. It is reasonable for Mr X to use his alternative legal remedies at court for a claim of damage or failure to maintain the highway. We cannot lawfully investigate a complaint the Council wastes taxpayers’ money.
The complaint
Complaint 1: Mr X complains the Council has rejected two claims for damage to his vehicle’s tyres caused by a road being in disrepair. He says the damage was caused at the same location and the Council had delayed repairing the defect which was reported in November 2019. Mr X says the Council is disputing whether the damage to his car happened at the same location as the report of a defect. He says he cannot pursue a legal claim unless the Council provides evidence of its position. He says the Council has disregarded his evidence.
Complaint 2: Mr X complains the Council and its insurer has a policy of automatically rejecting claims for damage caused by the condition of the highway. He says a policy of forcing claimants to go to court is a waste of taxpayers’ money because the Council will pay for legal representation.
Complaint 3: Mr X complains the Council fails to properly maintain roads. He says there are media reports of the Council failing to repair serious defects at dangerous locations. He says one road is in a state of total disrepair.
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 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) We cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)
How I considered this complaint
I have considered Mr X’s information and comments. The information includes the Council’s replies to his complaint dated 29 June 2021 and 7 July 2022.
My assessment
I will not investigate Mr X’s complaint for the following reasons: Complaint 1 The complaint is outside the Ombudsman’s jurisdiction because Mr X has or had a legal remedy at court (see paragraphs 4 and 5 above). Mr X can go to court if he considers the Council was at fault and is responsible for damage to his vehicle.
I consider it reasonable for Mr X to use his legal remedy. It is possible to go to the claims court which does not require the use of a legal representative. A court can decide any dispute relating to the location or evidence. It can decide whether the Council is at fault and award compensation.
Complaint 2 We cannot investigate a complaint the Council is wasting taxpayers’ money because it affects ‘all or most’ of the people in the Council’s area (paragraph 6). A council is not responsible for damage to vehicles unless it can be demonstrated that it was at fault which will depend on the evidence supporting a particular claim.
Complaint 3 The Council says that it inspects the highways and the road of particular concern to Mr X is to have patching repairs this financial year. The Ombudsman will not investigate because Mr X has a legal remedy which it is reasonable for him to use (paragraph 5). The Highways Act 1980, sections 56-58, enables a person to apply to court for an order requiring the highway authority to repair a road which is ‘out of repair’. A council has a defence that it has taken reasonable care.
Final decision
The Ombudsman will not investigate Mr X’s complaint the Council fails to maintain the highway and twice caused damage to his vehicle’s tyres at the same location. It is reasonable for Mr X to use his alternative legal remedies at court for a claim of damage or failure to maintain the highway. We cannot lawfully investigate a complaint the Council wastes taxpayers’ money.
Investigator's decision on behalf of the Ombudsman