Pothole damage: how to claim compensation from your local council


Updated on 16 January 2020

There's been a sharp rise in pothole damage this winter. Here’s how to claim compensation you're owed from your local council if your car gets damaged.

More cars damaged by potholes

The number of motorists who've had their car damaged by potholes jumped sharply in the last three months, new research shows.

Motoring firm RAC said it attended more than 2,000 breakdowns caused by pothole damage this winter, an increase of 3000 compared to winter in 2018.

Put into context, it means 1.1% of all breakdowns attended were due to holes in our roads.

The RAC’s Pothole Index, which you can see pictured below, attempts to measure the likelihood of motorists taking pothole damage.

At present, it estimates that drivers are 1.7 times more likely to break down as a result of pothole-related damage than they were back in 2006 when the RAC first started collecting data.

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Pothole damage likelihood, according to RAC (Image: RAC)

 

Why are the roads so bad?

First, a quick explainer as to why our roads are in such poor shape.

Potholes occur when water seeps down below a road surface and then freezes in the winter. This pushes up the asphalt and causes holes.

But it’s not just the weather that is causing such havoc. Other contributing factors are vastly increased traffic flow, which is putting pressure on roads of all sizes throughout the UK, and the constant digging up of our roads by utility companies.

When electricity and water companies perform repairs to their cables and pipes, they tend to simply patch up the road rather than resurfacing it, and this makes them more susceptible to damage.

Government promises funds, but not enough

There is some good news, with the Conservative Government pledging to spend £2 billion improving the state of our roads.

That sounds like a huge boost – and its certainly better than nothing – but research from the Asphalt Industry Alliance suggests it would need to spend £10 billion just to repair roads in England and Wales.

So in all likelihood, potholes are likely to remain an ongoing blight on our streets for the foreseeable future.

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Report potholes or councils won't pay out

In general, a hole in the road counts as a pothole if it’s more than 40mm deep. However, you should also report other dangerous road defects or smaller holes.

Local authorities have an obligation to pay out for damage caused by defects they should have maintained. However, they do have a get-out clause: if a pothole hasn’t been reported, the authority doesn’t have to pay up.

Most authorities with responsibility for maintaining roads now have easy to use pothole reporting systems on their websites.

In general, in England, Wales and Scotland the local council will be responsible for B roads and small A roads, In England Highways England is in charge of bigger A roads and motorways, and Transport for London looks after 'red routes' in the capital.

In Wales motorways and trunk roads are cared for by Traffic Wales and over in Northern Ireland, TransportNI cares for all the roads.

In Scotland, the responsibility differs depending what areas you are in. In the North West and North East, it falls to Bear Scotland, in the South West it’s the Scotland Transerv and in the South East it’s Amey’s job.

So, if you spot a pothole, or swerve to avoid one, check which authority is responsible and report it.

The more drivers who report potholes, the better. If you hit one that someone else has reported, you’ll be thankful they did. In turn, you’ll be helping other drivers by reporting other potholes you encounter.

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How to claim for pothole damage

Councils must have a system in place to enable them to receive defect reports from the public.

They may be liable if they have not acted after receiving a defect report or finding the defect during a routine road inspection.

Each council will have a specific procedure for compensation claims, so make sure you check your local council’s website for specific information.

Remember, you can claim for damage to bikes and motorcycles as well as cars.

As a general rule of thumb, if you aim to follow the steps below you won’t go far wrong.

  • Take a photograph of the pothole and note down its rough size and depth as well as its precise location (make a sketch of the area if you can).
  • Report it to your council using the reporting procedure specified on your council’s website.
  • If the council has not repaired it within a reasonable time (some say around a week is enough time to give) then this should strengthen your case.
  • Consider submitting a Freedom of Information Act request to the council or Highways Agency to find out as much as you can about the road and its maintenance history, as this could also strengthen your case.
  • Put all your complaints in writing and ensure that all contact with the council is done via letter or email (a phone call can always be denied). In your letter include: a full description of the accident, where and when it was (date and time), your photographs and your sketch plan of the area. Include a copy of your repair bill for the damage caused and keep copies of all your letters!
  • Consider Twitter too. Tweeting will put pressure on your local council as its other followers are likely to see the tweet.
  • The free RAC Report Pothole app uses GPS to quickly identify where you are and can send a report to your local council automatically. You can send up to three photos of the pothole as well as signage problems, street light problems and more. It's available on iOS and Android.
  • If the council makes you an offer you should give it proper consideration even if you are not entirely happy. If you wish to fight on, your next option will be to take court action. Provided your claim is for less than £10,000 (£5,000 in Scotland) you can go to Small Claims court. You won’t need a solicitor and you can issue proceedings online via their MoneyClaim Online system. 

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Am I likely to get compensated?

It won’t be easy!

The council will vigorously defend itself under section 58 of the Highways Act (which basically states they just have to prove they have taken ‘reasonable’ care of the road).

But that doesn’t mean you shouldn’t try. While evidence suggests that the vast majority of claims are automatically turned down in the first instance, persistence is key.

If your claim is rejected and you think it’s unfair, you can ask to see details of the council's road inspection reports, and try to claim again. If you still don’t win, you can take your case to the small claims court.

If the damage is very expensive, contact your insurance company or seek legal advice.

Authorities currently pay out more than £30 million in compensation for potholes so it's worth your time.

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