The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint that her car was damaged by a pothole. This is because it is reasonable for Ms X to pursue her claim for expenses and repair costs by taking the Council to court.
The complaint
Ms X complains the Council failed to maintain the road properly and says her car was damaged by a pothole. She wants the Council to reimburse her expenses and repair costs.
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 Ms X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
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.
Ms X says her car was damaged by a pothole because the Council failed to maintain the road. She reported the incident to the Council and asked for compensation.
The Council considered Ms X’s claim for expenses and repair costs. It offered to pay for the tyre but did not accept that it was liable for the damage to the car’s bodywork.
We cannot decide whether the Council has complied with its duty under Section 41 of the Highways Act. Any dispute about the Council’s liability for the damage is for the courts. Ms X may purse her claim by taking the Council to court and I have seen nothing to show it would be unreasonable to expect her to do so. For these reasons, we will not investigate this complaint.
Final decision
We will not investigate Ms X’s complaint because it is reasonable for her to pursue her claim for expenses and repair costs by taking the Council to court.
Investigator's decision on behalf of the Ombudsman