The Ombudsman's final decision
Summary: We will not investigate this complaint about damage caused by potholes to Mr X’s vehicle. It is reasonable for Mr X to refer the matter to the courts.
The complaint
Mr X complained the Council’s failure to deal with potholes caused over £800 worth of damage to his vehicle. He says its insurers referenced the wrong street in their reply, leading him to believe the Council investigated a different road when responding to his claim. He wants the Council to pay the cost of fixing the damage and repair the potholes in question.
The Ombudsman’s role and powers
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 the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X’s complaint is about damage to his vehicle caused by potholes. He says the Council has failed to maintain the highway to a reasonable standard.
These complaints are really negligence claims. The Ombudsman does not normally investigate such complaints. Negligence claims are generally best left to the courts to decide. Only a court can decide whether: the authority should have dealt with the problem before it caused the complainant harm; the complainant should have taken steps to avoid the harm; the Council is liable to pay damages for any loss or injury.
It nis also open to Mr X to apply to a Magistrates’ court for an order requiring the Council to bring the highway up to standard. The process requires the complainant to serve a notice requiring the authority to repair the highway in question. The authority must reply, confirming if it is the authority responsible for the highway. If it is, the complainant then has six months to apply to the Magistrates' court for an order under the Highways Act 1980 s56. Providing the magistrates agree, the order requires the highway authority to carry out the work.
There is not a good reason for us to consider the matter instead.
Final decision
We will not investigate Mr X’s complaint because it is reasonable for him to use his right to refer the matter to the courts.
Investigator's decision on behalf of the Ombudsman