Consumer rights champion Martyn James explains if it is really worth your time complaining to the council about potholes
If there’s one subject that grinds driver’s gears, it’s potholes.
Most drivers have a pothole story. Even if you’ve not hit one or your car has been damaged, chances are you know the ones to dodge on the roads near you or you have found yourselves driving slalom style to avoid the treacherous things lurking ahead.
Potholes are such an issue they are now hitting the news as an electoral issue. Successive governments have largely avoided the problem, batting it off to local councils and the Highways Agency to deal with. But as any local councillor will tell you, potholes top voter’s list of grips, along with litter and bin collections. So woe betide anyone who makes light of the situation.
The government has just announced £7.3 billion for road maintenance. But that’s not going to fill the big hole in the funding gap, as it’s estimated that it will cost £17 billion to fix the nation’s potholes. However, they have also provided a handy map so you can see how your council is fairing in the repair stakes.
Many readers tell me they don’t think there’s any point in complaining about potholes – and I won’t lie: some councils are rubbish at dealing with claims. But with a bit of perseverance and an overview of the law, you could just win. Here’s my guide.
What is a pothole?
We all know what they are, but surprisingly there is no standard definition of a pothole. Research by the RAC Foundation found that the criteria used by Local Highway Authorities (LHAs) for the minimum depth of a pothole varies considerably – from 20mm to 50mm.
They are also graded by length and width and by the level of risk they pose. In most (but not all) cases, the LHA will be the council in the area where the pothole that damaged your vehicle is.
This means that you are the mercy of how that particular council defines a pothole if you want to make a claim. You’ll need to search on the council website to find this information, but having spent a rather frustrating few hours trying this out, I can tell you it’s much easier to type ‘pothole’ along with the name of the council or LHA in to a search drive.
Can I claim on my insurance?
Drivers who can’t face making a pothole claim to a council often ask me if they can make an insurance claim instead. The simple answer is yes – though you’ll need to have a more comprehensive policy.
However, your insurer may ask you to go through the process with the council first anyway – and basic policies may not cover you.
Regular readers will know from my column that even notifying your insurer about a ‘claimable incident’ could affect your premiums, even if you don’t claim. In fact, notifying your insurer of incidents is usually required by the policy. However, many people opt to pursue the matter through the local authority or Highways Agency if the amount of the claim is relatively low.
How do potholes damage vehicles?
The most common types of damage caused by the ever-present menace of potholes are:
- Direct or indirect damage to the car’s steering systems.
- Damage to the wheel and suspension.
- Damage to the undercarriage of the vehicle.
- Tire blowouts, buckles and punctures.
- Damage to the exhaust.
In more serious cases, it’s possible that you might lose control of the vehicle, which could result in a much wider scope of damage depending on what happens next.
In addition, there are personal injury claims. I’m not covering that in this feature as personal injury claims usually go through solicitors and are ludicrously complicated.
What do I do if I hit a pothole?
Your safety is the priority, so only pull over in a spot where you can safely assess the situation. Some signs of damage will be obvious or at least visible to the eye. Others might be not be visible. For example, you might find your car starts making troubling noises or the steering wheel is misaligned.
It helps to make some notes as soon as you can. The wonder of modern technology means you can just record this using your phone’s ‘voice notes’ features. Other evidence is important too, including visual images of the pothole and details about where it is or if there are any marks around it indicating it’s been identified before.
Again, don’t risk your life to photo the pothole on a busy road. If you are able to take a picture, then it can help to have an identifiable item to put next to the pothole for size perspective. If not, come back later when it’s quieter or see if someone has already flagged up the pothole on the internet. This is much easier to find than you may think. There are forums and websites devoted to some of the more prolific potholes!
You’ll have to go ahead and get the vehicle repaired before claiming, of course. So make sure you get a few quotes so you can prove you didn’t just go for the most expensive option, if the council disputes the costs.
How do I make a claim?
You’ll need to report the pothole to the council or highway agency that is responsible for that stretch of road.
This could be the local authority, city or council that is responsible for the road in question. It may also be the organisation responsible for maintaining the highway.
Many councils will argue that they are not liable for potholes unless they have been reported previously. You’ll see this referred to often in relation to the Highways Act 1980 – section 58 specifically. Don’t go down the rabbit hole of conspiracy theories online about this. Just assume that the council will argue this point, and counter it with your own evidence.
As I mentioned before, there is a wealth of information out there from pothole crusaders, many of whom will have identified the specific pothole, reported it and highlighted other incidents.
Regardless, report the pothole to the local authority, city or council that is responsible for the road in question:
What do I include in my claim?
As a general rule, the more information you can provide about the incident, the better, including:
- A full breakdown of what happened, including dates, times and other factors that may be relevant (was the road busy, weather conditions, etc.)
- The location of the pothole and details about it (size, depth, where it is on the road).
- The extent of the damage.
- The full cost of repairs (with proof).
- Evidence that the pothole has been around for a while/been reported already.
- The physical/mental impact on you personally.
You may pre-emptively request to see the council’s road repair reports and other documents they hold about the road in question and repairs.
Send copies of the documents, not originals. You may want to photo them too, just in case you’re able to submit an online claim.
What if my claim is turned down?
The council appointed claims handler will contact you and will usually give you their decision in writing. If your claim has been rejected, then you can appeal, but you’ll have to counter their findings. Most people do this by putting in Freedom of Information (FoI) requests on things like road maintenance and repairs or information about other complaints made or reports about the pothole in question.
Once you’ve got the information you need, make a formal appeal to the council/LHA setting out your objections to the conclusions drawn in the original decision. But if they don’t agree with you, then ultimately, you’ll need to take them to the Small Claims Court.
This might seem a little intimidating, but it’s actually quite easy to do. The process is different for England and Wales, Scotland and Northern Ireland, but you can start the process online and it’s not that expensive (depending on how much you’re claiming). Get started here. Many readers have told me about their successful small claims cases, so if you’re furious enough to take it further, it could just work out for you.
- Martyn James is a leading consumer rights campaigner, TV and radio broadcaster and journalist.
