The Ombudsman's final decision
Summary: We will not investigate Mr C’s complaint about the Council’s refusal of his compensation claim after his car was damaged by a large pothole. This is because it is reasonable for Mr C to pursue his compensation claim at court.
The complaint
Mr C complains his car was badly damaged after hitting a large pothole which the Council had failed to repair. Mr C says the Council has wrongly refused his compensation claim and it should not be his responsibility to pay for the repairs given the Council’s failure to maintain the roads. Mr C would like the Council to pay him compensation for the expenses he has already incurred and for the required repairs to his car, which he currently cannot use.
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 C.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council as a local highways authority has a statutory duty to maintain adopted streets. The Council 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.
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.
Our role is to consider complaints of administrative fault. Negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
Mr C has received the Council’s insurer’s decision on his compensation claim. Mr C may pursue his claim by taking the Council to court.
Only a court can decide if the Council was negligent including if the Council is entitled to rely on the statutory defence that it followed a reasonable system of highway inspection and repair. Also, unlike the courts, we have no powers to enforce an award of damages.
So, I would usually expect someone in Mr C’s position to seek a remedy in the courts. I find it is reasonable for Mr C to take the Council to court. The initial fee for making a claim is relatively modest and Mr C can seek legal advice for help pursuing a claim. Also, only the courts can decide the matter complained about and provide the outcome Mr C seeks.
So, we will not investigate this complaint.
Final decision
We will not investigate Mr C’s complaint because it is reasonable for him to take the Council to court.
Investigator's decision on behalf of the Ombudsman