The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s handling of his claim for damages arising from a pothole. This is because it is reasonable for Mr X to go to court.
The complaint
Mr X complains about the Council’s handling of his pothole damages claim.
In short he alleges he alleges the Council is providing inadequate highway inspection information, that it did not act on reports of damage, that it refused to provide information relevant to s58 of the Highways Act 1980, and prematurely closed its complaints process.
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 X.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council as a local highways authority has a statutory duty to maintain its highways. The Council is expected to routinely monitor the state of highways and carry out repairs where necessary. But the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
Mr X is complaining his motorcycle was damaged by a pothole. He made an insurance claim, but the Council denied liability. It advised him of his rights to take the matter to court.
In effect, Mr X is saying the Council has been negligent here. 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.
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 X’s position to seek a remedy in the courts.
I do not consider there is any exceptional reason why Mr X cannot to pursue these matters in court. So, we will not investigate this complaint.
Final decision
We will not investigate Mr X’s complaint because it is reasonable for him to take his claim to court.
Investigator's decision on behalf of the Ombudsman