The Ombudsman's final decision
Summary: We will not investigate Miss X’s complaint that she had a car accident due to the poor condition of a Council road. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable to expect Miss X to approach the court with her claim.
The complaint
Miss X says she had an accident due to the poor condition of a Council road. She says she suffered injuries, and her car was written off.
Miss X would like the pothole repaired. Miss X would also like to be compensated for the loss of her car and the effect on her mental and physical health.
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 Miss X.
I also considered the Ombudsman’s Assessment Code.
My assessment
The Council has denied liability. It says it repaired the road and has a reasonable system of inspection, maintenance and repair as required under s58 of the Highways Act 1980.
The Council as a local highways’ authority has a statutory duty to maintain roads. 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.
If a person considers that a highways authority has failed to properly maintain a highway it is responsible for, they can apply to a Magistrates’ court for an order to be made under section 56 of the Highways Act 1980, requiring the authority to take whatever action is needed to bring the highway up to standard.
In terms of Mrs X’s claim for damages, we would normally expect her to pursue this via the courts. This is because it is essentially a negligence claim, and only the courts can decide if the Council is liable for her injuries and financial loss. And the courts have the power to award damages against the Council. The Ombudsman has no powers to enforce an award of damages.
Final decision
We will not investigate Miss X’s complaint because it is reasonable to expect her to go to court.
Investigator's decision on behalf of the Ombudsman