The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint about damage to her vehicle from a pothole in the road. This is because it would be reasonable for Ms X to make a claim against the Council via the courts.
The complaint
Ms X complained that the Council rejected her claim for the cost of repair after damage allegedly caused by a pothole. The Council was aware of the pothole but denied liability.
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)
How I considered this complaint
I considered information Ms X provided and the Ombudsman’s Assessment Code.
My assessment
Whether the Council is liable for the damage to Ms X’s car is a legal issue. The law requires the Council to maintain public highways but it also provides the Council a statutory defence against claims for damage to vehicles resulting from potholes in certain circumstances. Only the courts, and not the Ombudsman, can decide whether this statutory defence applies.
If therefore Ms X believes the Council is responsible for the damage to her car, and if she wishes to claim compensation for the damage, it would be reasonable for her to make a claim against it at court.
Final decision
We will not investigate this complaint. This is because it would be reasonable for Ms X to take the matter to court.
Investigator's decision on behalf of the Ombudsman