The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s handling of Mr X’s claim for damage to his car, which he says results from hitting a pothole in the road. This is because it is reasonable for Mr X to pursue his claim through the courts.
The complaint
Mr X complains the Council failed to properly maintain a road which resulted in his vehicle being damaged by a pothole. He wants the Council to reimburse him for repair costs and pay compensation.
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 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.
Mr X complains his car was damaged when it hit a pothole in the road, due to the Council’s failure to properly maintain the road. He made a claim to the Council, but the Council refused his claim.
We cannot decide whether the Council is liable for the damage to Mr X’s car and have no powers to enforce an award of damages. Mr X may pursue his claim by taking the Council to court and I have seen nothing to show it would be unreasonable to expect him to do so. Further, the law provides the Council with a special defence against claims for damage at court and it would not be appropriate for us to deny the Council the opportunity to use it.
Mr X is also unhappy with the way the Council dealt with his complaint. It is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.
Final decision
We will not investigate Mr X’s complaint because it is reasonable for him to pursue his claim by taking the Council to court.
Investigator's decision on behalf of the Ombudsman