The Ombudsman's final decision
Summary: We will not investigate Ms B’s complaint that her car was damaged by a pothole. This is because it is reasonable for Ms B to pursue her compensation claim at court.
The complaint
Ms B complains her car was damaged after hitting a large pothole which the Council had failed to repair. Ms B says the Council has wrongly refused her claim for compensation.
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 Ms B.
I considered the Ombudsman’s Assessment Code.
My assessment
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.
The Council has considered Ms B’s claim for compensation but did not accept the Council is liable for the damage to her car. Ms B may pursue her claim by taking the Council to court.
The Council as a local highways authority 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.
Also, a local highways authority has a statutory defence if it can show it could not reasonably have been expected to put right a defect before an incident happened.
This means the presence of a road defect at the time of an incident is unlikely to be enough on its own to prove negligence.
Only the court can decide if the Council has been negligent and whether the Council is entitled to rely on this statutory defence. Also, unlike the courts, we have no powers to enforce an award of damages.
So, I would usually expect someone in Ms B’s position to seek a remedy in the courts. I find it is reasonable for Ms B to do this.
So, we will not investigate this complaint.
Final decision
We will not investigate Ms B’s complaint because it is reasonable for her to take the Council to court.
Investigator's decision on behalf of the Ombudsman