The Ombudsman's final decision
Summary: We will not investigate Mr B’s complaint that his car was damaged by a pothole. This is because it is reasonable for Mr B to take the Council to court.
The complaint
Mr B complains his car was badly damaged after hitting a large pothole which the Council had failed to repair. Mr B says the Council has refused his compensation claim even though the Council accepts it was aware of this pothole before the incident. Mr B says the Council should have either promptly repaired this pothole or alerted motorists to it. Mr B says his repair costs were over £1200 and he would like the Council to accept some responsibility for the damage.
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
Mr B complains his car was damaged because the Council failed to maintain a road it is responsible for. So, in effect, Mr B’s complaint is that the Council has been negligent.
The Council has considered Mr B’s claim for compensation but did not accept the Council is liable for the damage to his car. Mr B may pursue his claim by taking the Council to court.
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.
A local highways authority 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 the court can decide if the Council has been negligent and whether the Council is entitled to rely on this statutory defence. This would include deciding whether the Council took a reasonable amount of time to inspect and repair this defect.
In addition, only a court can decide if an organisation should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation and we cannot order a party to pay damages.
I cannot decide whether the Council 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.
So, we will not investigate this complaint.
Final decision
We will not investigate Mr B’s complaint because it is reasonable for him to take the Council to court.
Investigator's decision on behalf of the Ombudsman