The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about a highway disrepair issue he says has resulted in damage to his car. This is because it would be reasonable for Mr X to take the matter to court.
The complaint
Mr X complains his car was damaged as a result of defects in the road. He believes the Council is liable for the damage and should pay for any costs he incurs to repair the car. He also believes the Council should take action to repair the road itself.
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 provided by Mr X and the Ombudsman’s Assessment Code.
My assessment
Our role is to consider complaints about administrative fault. We cannot establish liability in complaints involving damage to property. Claims for damage to property are a matter for the Council’s insurers and, ultimately, for the courts.
Mr X says he has contacted the Council about the damage to his car but not received a response. In this case, if he believes the Council is liable, it would be reasonable for him to make a claim against the Council at court.
Mr X also has concerns about the surface of the road itself and claims the Council is negligent for failing to address the issue.
Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary.
We cannot interpret the law to say the Council has failed to fulfil its duty; if Mr X believes this to be the case he may follow the process set out at Section 56 of the Highways Act 1980. This allows Mr X to serve notice on the Council and, if it does not act, he may apply to the court for an Order requiring it to carry out repairs. Only the courts may decide whether the Council has fulfilled its statutory obligation so if Mr X wishes to pursue this matter it would be reasonable for him to follow this process.
Final decision
We will not investigate this complaint. This is because it would be reasonable for Mr X to take the matter to court.
Investigator's decision on behalf of the Ombudsman