Summary: We will not investigate this complaint about highway maintenance. This is because the courts are placed to consider this complaint.

The complaint

1. Mr Y complained the Council has failed to maintain the highway properly, which has led to damage to his vehicle on two occasions.
2. Mr Y says repairing his vehicle has cost him £1,747 which he says he cannot afford to lose.

Back to top

The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
4. 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)

Back to top

How I considered this complaint

5. I considered information Mr Y provided and the Ombudsman’s Assessment Code.

Back to top

My assessment

6. Mr Y says he drove through potholes in March 2022 and January 2023, which have led to damage to his vehicle, costing over £1,700 to repair. He considers the Council responsible for the damage and is seeking the cost of repairs to be reimbursed by the Council. He made a claim to the Council, which was rejected in March 2023. He then approached us.
7. Analysis
8. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property, such as a vehicle or personal injury. These are legal claims which may only be determined by insurers or the courts.
9. We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs to his car, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts or through insurers, particularly where the Council has disputed its liability. We will not investigate this complaint.
10. Further, Mr Y has complained about the Council’s failure to maintain the highway, and breaching its duty as a result. If a person considers that a highways authority has failed to maintain a highway it is responsible for, the person affected can apply to the Magistrates Court for an order to be made under section 56 of the Highways Act 1980. This order requires the highways authority, in this case the Council, to carry out the work needed to the highway.
11. If the highways authority does not respond in time or does not accept it is responsible for maintaining the road, the person may apply to the Crown court for such an order.
12. Mr Y may use this process to try to get the Council to repair the road. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Mr Y to be expected to use this right to go to court about this matter.
13. Also, the court is in the best position to decide whether the Council has met its legal duty to maintain the highway. Unlike the Ombudsman, the court can order the Council to do the required work, so it is better placed than us to consider the complaint. We will therefore not investigate.

Back to top

Final decision

14. We will not investigate Mr Y’s complaint because the court are better placed to consider the complaint.

Back to top

Investigator's decision on behalf of the Ombudsman