Marcel and Rebecca | Edited by Steve N
Updated 29 Mar 2016
Anyone who's ever hit a pothole will have heard that horrible sudden clunk. Your car's been crocked and you know it's going to cost.
Whoever controls the road has a legal duty to maintain it to a fit standard. If they don't, and your car's damaged, they should pay for repairs. That's the law – our straightforward, step-by-step guide shows you how to use it.
Let us know your tips. Claiming for pothole damage is a large and complex subject, and we expect to add to and develop this guide. Please give us your feedback, suggest improvements and tell us how your claim went in the Pothole claims forum thread.
While every effort's been made to ensure this article's accuracy, it doesn't constitute legal advice. If you act on it, you acknowledge that you do so at your own risk.
In this guide...
'I claimed £498 - a wonderful feeling of winning justice'
Potholes are a plague on Britain's roads. More than two million had to be filled in across England and Wales last year - and there are many more out there.
Whenever we ask you what you'd like us to campaign on, huge swathes of you say "potholes, potholes, potholes". So we've launched this major 10,000-word (you don't need to read it all) guide to help.
If you've hit a divot or a crack and your car's damaged, the process of filing a claim can seem daunting, and many drivers don't know where to start. But if the authority which was responsible for maintaining the road failed to do so properly, it is possible to successfully claim for repairs in full.
Of course, you can only claim if the authority was at fault. Potholes are inevitable, particularly in winter, so the key question is whether it could and should have fixed it before your car went clunk.
Remember, in reporting a pothole, you're being a good citizen. And if the authority was negligent and didn't do the checks it should have, claiming for repairs can help put pressure on the powers that be to keep the road safe and in good condition. Equally though, this is taxpayers' money and in the short term claims can put local councils under real pressure, so you'll need to decide for yourself what the right thing to do is.
It can be a long slog, but don't be put off - we've seen many successes:
I hit a pothole on the M20 motorway on my journey home from work and suffered a cut to a tyre. I claimed from the Highways Agency and got £530.- David
I went through the small claims and Bucks County Council threw in the towel 48 hours before the hearing. They paid me everything (£400) and the pothole hadn't been reported before.- Richard
Our claim eventually went to the small claims court. It increased to £498 with court fees, interest and compensation. It requires persistence and a lot of time. But it can result in a wonderful feeling of winning justice.- Tom
Surprise surprise my original claim was rejected by the local authority. Not to be deterred I sought the maintainence history through the FOI route which seemed to infer that problems in the street had not been actioned over the three months prior to my event.
Once I reported the damage and indicated my intention to claim, the repairs were completed the day after. The process has taken nearly three months but my claim will now be paid in full as a goodwill gesture although no liability is being accepted for the damage. I can live with that though! The moral - don't be deterred.- Forbecs
The best advice is persevere. The forms sent to me were phrased to make me give up before I started. However I was so angry I completed every step (hurdle) and eventually I was compensated for the replacement wheel and tyre I required.- Ca55ie
Before you start, keep in mind that it isn't always easy to claim for pothole damage. While there are successes, there are sadly many instances where claims are rejected too.
Before you get into actually making a claim, here are the big questions answered.
Potholes are usually caused by water seeping down into the road surface, then freezing and creating gaps that widen up into gaping holes in the road.
Officially, according to the Well-Maintained Highways Code of Practice, in order to count as a pothole the hole must be at least 40mm deep - about the height of two stacked 20p coins. If the one you hit wasn't that deep you can still claim, but it'll be tougher.
If your car's been damaged by a problem in the road which isn't a pothole - if you've hit a piece of loose pavement, for instance - you may still be able to claim by following the step-by-step system below. But your chances depend on how the road defect is categorised by the authority responsible.
You need to prove it was the pothole wot dunnit
Hitting a pothole normally causes damage to a car's tyres, wheels or axles, and you'll often know immediately that something's wrong (you'll probably hear it).
In order to claim for the damage, you'll have to prove the pothole caused it - that the repairs you're having to shell out for were specifically caused by your impact with the pothole. Your mechanic should be able to put this in writing for you.
Check who's responsible - then report it!
As soon as you've hit a pothole, make sure you warn other drivers. Whether or not you intend to claim, calling it in will help to keep the roads safe (and if you do intend to make a claim further down the line, it's important to be able to show you did your civic duty.)
Even if you don't think you'll qualify for compensation after hitting a pothole, ALWAYS report it. We need to put pressure on the authorities to fix these problems. That's not just about making it costly when they don't fix 'em, it's making sure they know about problems on their roads.
Different authorities are responsible for maintaining certain types of road, so you'll need to check who to contact. The table below shows who's in charge of what. To find out what road you're on - first check the road name on a map or sat nav and if you're still stuck you can contact the Highways England for help.
When you call up the relevant company, ask if claim forms can be sent to you, or if you can download them online.
|Area and type of road||Who's responsible||How to report the pothole|
|Eng, Wal & Scot - Local roads, B roads and smaller A roads*||Local council||Call the council or report via its website. For Eng & Wal you can find the council by postcode on the Gov.uk website and for Scot check the Convention of Scottish Local Authorities site|
|Eng - Motorways and trunk roads (major A roads)*||Highways England||Email firstname.lastname@example.org or call 0300 123 5000 (open 24/7)|
|Greater London - Roads listed as 'red routes'||Transport for London||Report it on the Transport for London website or call 0343 222 1234|
|NW and NE Scotland - Motorways and A roads||
(maintenance firm for Scottish Govt)
|Report it on Bear Scotland's website or call 0800 028 1414|
|SW Scotland - Motorways and A roads||Scotland Transerv (maintenance firm for Scottish Govt)||Report it online at Scotland Transerv or call 0141 218 3800|
|SE Scotland - Motorways and A roads||Amey (maintenance firm for Scottish Govt)||Report it online at Amey or call 0800 521 660|
|Wales - Motorways and trunk roads||Traffic Wales||Call 0300 123 1213|
|N Ireland - All roads||TransportNI (formerly Roads Service)||Call 028 9054 0540 or report it on the TransportNI website|
|Eng, Scot, Wal, NI - Private roads, eg, car parks||Private firms||Contact the company directly|
|*Broadly speaking local councils take care of local A roads and Highways England look after major A roads, although it's impossible to say categorically and exceptions apply. Check Highways England's map to see the roads it's responsible for.|
You can claim if your vehicle's damaged and the authority responsible for the road failed to properly maintain it
Britain's highway authorities and agencies are legally obliged to maintain roads to a safe standard. That includes fixing potholes.
If your vehicle's been damaged and you believe the authorities haven't maintained the roads properly, how much you can claim for generally depends on the extent of the damage to your vehicle. Typically, car damage claims tend to be around £300-£500. Some drivers who've claimed have successfully recouped the entire amount - in other cases, they've won part of the cost.
Some have also successfully claimed for injury resulting from a pothole collision, but this guide focuses only on vehicle damage claims. If you intend to claim for personal injury, you'll need to seek legal advice.
There's no explicit sentence in law which covers claiming for potholes, but there are laws which force authorities to keep the roads safe - and that's what you'll be claiming the authorities have failed to do.
- In England and Wales, the relevant legislation can be found in Parts 42-58 of the Highways Act 1980.
- In Scotland, it's Part 1 of the Roads (Scotland) Act 1984.
- In Northern Ireland, it's Article 8 of the Roads (Northern Ireland) Order 1993.
For most pothole claims there's a step-by-step procedure you can follow. But if your claim's not successful, ultimately the last resort is to go to the small claims court - except in Northern Ireland, where there is an ombudsman.
How long will claiming for pothole damage take?
It depends - it can be a lengthy process. We've heard of some claims being approved in as little as four weeks, but other cases take seven or eight months.
Be patient and tough it out because sometimes claimers will hear nothing for months, then suddenly get a letter confirming compensation. You'll likely need perseverance and patience. We'd love to hear your triumphs in our Potholes forum discussion.
What are my chances of success?
Let's be honest - submitting a claim for pothole damage can be a fair bit of work, and success is far from guaranteed. Even experts in the field admit it can be a challenging process.
That said, it is possible to recoup the cost of the damage, and we hope that as more people try this, it'll become easier. In many of the cases we've seen, claimants have got the full cost of repairs, with some going all the way to court. Others have decided, after a lengthy process, to accept a settlement for part of their costs.
The bottom line? You have a decent shot of getting your damage paid for, but it may take some time and there are no guarantees.
How far back can you claim?
If you hit a pothole and damage your car it's easiest to claim as soon as you can. However, officially the limit for retrospective claims is six years (five in Scotland) - that's because that's how far back you can go when filing for damages in the small claims court.
If you hit a pothole years ago and didn't gather any evidence, it's unlikely you'll be able to claim for damage now. But if you did collect evidence at the time but didn't file a claim - or did file a claim and were rejected - you may still be able to make a full claim using a Freedom of Information request as we explain below.
What about private roads?
Sometimes drivers may hit a pothole on a road controlled by a business - for example, where a supermarket is responsible for the road or car park leading to its entrance.
Here the same legal principle applies - the private company in question still has a legal duty to keep the road safe (the rules are set out in the Occupiers Liability Act (OLA) 1957 for England, Wales and N Ireland - in Scotland it's the Occupiers Liability Act (OLA) 1960).
Pothole pranged your bike? The information in this guide isn't just for motorists. Although we've generally assumed you'll be claiming for damage to a car, if you hit a pothole while on a bike the same rules and processes apply.
Although this guide is about claiming for pothole damage from the authority responsible, you also need to consider claiming on your car insurance. And even if you don't claim on your insurance (or you only have third-party cover), you'll need to decide whether to notify your insurer.
Should I claim on my insurance?
There's no doubt that claiming on your car insurance is an easier process than claiming compensation from those responsible for maintaining the road (and doesn't rely on you claiming from the taxpayer, either). But you need to factor in the cost of the damage, your excess and the effect on any no-claims bonus you have.
Bear in mind that you can't claim twice - if you claim on your car insurance, there's no point in claiming compensation as well. (If you did, then according to a legal technicality anything you got back from the responsible authority would be paid to your insurer.)
Should I notify my insurer otherwise?
Insurers tell us drivers should notify them of pothole damage immediately, regardless of whether they intend to claim. You'll then usually have around five or six months before you have to file an insurance claim, which gives you time to see if a claim to the responsible authority will work first.
Be aware if you do notify your insurer, there might be a risk in some cases of your premium being affected for the following year, even if you don't actually claim. This is impossible to quantify (plus big insurers have told us claiming WOULDN'T affect next year's premium), but it's something you should consider.
Still not had your question answered? Let us know in the forum discussion and we'll try to add it to this section.
Our usual campaigns are about reclaiming money you’ve wrongly paid - not damages, which this guide is about. A compensation culture is dangerous and we need be wary of this, especially when taxpayers are footing the bill.
Yet the authorities have a legal duty to maintain roads so they're safe for everyone to use. If they don't and your car's damaged, they should help pay the costs to repair it.
It’s important to understand you can only claim anyway if the authority responsible for the road has been negligent. So if a cannon ball drops off a truck, causing a pothole which two minutes later damages your car, you’ve no right to claim - there’s nothing the authorities could’ve done to prevent that.
Even if you are eligible to claim, you have a decision to make. Some argue that compensation deprives authorities of much-needed cash to fix roads - others that the more people pursue their rights, the more incentive there is for authorities to improve the roads to avoid dealing with claims.
After huge user demand to know pothole rights, we’ve delivered this guide for our users, we hope in a responsible, non-militant, easy-to-use way. You must decide whether to use them.
Damage from a pothole? Gather evidence
The first thing to do is start collecting the proof, pronto. No matter which authority you're claiming from, your overall goal's the same - to gather enough evidence to prove the authority was negligent.
If safe, take photos and measure the pothole's depth
If you've a tape measure handy, and if it's safe (you won't be able to do this on a motorway), measure the depth of the pothole and note it down. If it's 40mm or more deep (roughly the height of two 20p coins) then bingo - it's definitely worth pursuing. If it's less, it's still worth continuing, but you might not get the full cost of repairs back. Measure the width too.
Take pictures straight away, or as quickly as it's safe to do it. If you don't have a camera when it happens, you can always come back. Things to photograph include:
Close-ups of the pothole. We don't advocate stopping traffic, but it's vital to act quickly. A handful of pictures showing the width and depth of the pothole should be ok. If you can, measure the depth with a tape measure, then take a picture with the tape measure inside it.
If that's not possible, get any standard-sized object (a newspaper could do the job), put it inside the pothole, and mark the depth on it to give you a metric.
The pothole's position in the road. Take some mid-range pictures of its position in the road from different angles, showing which lane it's in. Check the pothole's visible in these.
Road signs. Get more pictures of the immediate stretch of road including road signs. Photographs of nearby landmarks such as schools and prominent buildings will help pinpoint the spot.
Your car. You'll need to show the damage done, so take several good quality pictures of anything that's broken, severed, dented or scratched.
Be careful! You don't have the right to walk on the motorway...
Yep, we're stating the obvious here, but if the pothole's on a motorway or major carriageway anywhere in the UK, you can't stop to take pictures. Not only is it unsafe, it's also a criminal offence to walk unauthorised along a motorway. You also need to be careful about stopping in a dangerous place and getting out of your vehicle.
Your best bet in this case is looking for a nearby bridge that allows you to take pictures of the signs and general location.
Take notes and gather the paperwork
Any documentary evidence will boost your case, so it's important to collect as much supporting paperwork together as possible. Here are some of the things to consider (although don't worry if you don't have something for every point):
- The pothole's exact position: Make a note of its location - eg, where it sits in the road, which lane it's in (if that applies) and how many metres it is from the pavement. Note any landmarks on either side of the road. If there's a prominent building nearby (say a church or a school), ensure you get the name correctly.
- The accident itself: Keep a record of the moment you hit the pothole. Write down the exact time and date, and try to describe the conditions - the weather, traffic and so on. Be as accurate as you can.
- Did anyone see you hit the pothole? If they did, and if it's possible to contact them, ask if they'll put something in writing for you. For example, if it was impossible to see the pothole on approach, or if it was clearly a hazard, ask if they'll confirm this. This may help your claim further down the line.
- A map-like sketch: If you can, do a quick sketch of the pothole, the stretch of road it's on and a couple of buildings or signs either side. Don't worry too much about the quality, it doesn't have to be Van Gogh.
If possible, try to make any notes as soon as possible after the event, and date them. If the worst comes to the worst and you have to go to court, 'contemporaneous' notes (ie, those written at the time something happened) are generally considered more reliable.
Keep a record of the damage to your car
This bit's crucial. Remember, you're not claiming for general compensation as such, you're reclaiming the cost of repairs to your car.
When you get your car looked at and then repaired, keep a copy of your bill and make sure it's clearly itemised and dated. If possible, ask the mechanic to put it in writing that the damage was caused by a pothole - if you can, it'll really help later on.
Try a fast claim first
By now you should know which authority's responsible for the pothole you hit, and you should have reported it (if not, go back and do so now). You should also have a pack of evidence.
Now it's time to claim. The simplest and fastest way of doing this is by using the authority's own claims process - normally it just means filling in a form. Not every authority lets you do this, and if they do, it's not always successful. But it's always worth trying first.
Forumite reduceditem was successful doing this, posting:
I claimed from Glasgow City Council for pothole damage that required both coil springs to be replaced. They sent me out a form that I completed and returned with photos.
Several weeks later they sent me a letter simply asking me to send them my garage repair bill. Some time after that I got my cheque.
Here's how to file a fast claim – and remember, if you're not sure who to claim from and report the pothole to, check here:
- Councils in England, Wales or Scotland. Some councils in England, Wales and Scotland will send you a form to complete when you report a pothole. If not, you can check whether your council allows fast claims by looking on its website. A full list of council websites can be found at Gov.uk. If your council doesn't have a fast claims system, skip to How to make a full claim.
Transport for London: You should be sent a form after reporting the pothole - if it doesn't arrive, call 0343 222 1234. There are separate forms for drivers and cyclists. Once you've sent it off, TfL's insurance provider Gallagher Bassett will investigate your claim. There's no official timeframe for you to get a response though.
Highways England: Again, you should be sent a form when reporting the pothole. If not, call 0300 123 5000. The form should arrive in 15 days. After you send it in, the agency has 90 days to respond.
Major roads in Scotland: All the agencies that look after motorways and A roads in Scotland should send you a form when you report a pothole - if not, call either Bear Scotland on 0800 028 1414, Scotland Transerv on 0800 028 1414 or Amey on 0800 521 660. The form should arrive in two working days. Bear Scotland says responses generally take 28 days - Scotland Transerv give no firm timeframe.
Traffic Wales: If you asked for a form when reporting the pothole, you should have been sent an information pack and claim form - if you didn't or it hasn't arrived, call 0300 123 1213.
TransportNI (Northern Ireland's Dept for Regional Development): You can download the form directly from the NIdirect.gov.uk.
Private roads: Claiming for pothole damage on a private road generally works in a similar way, but it's a slightly different process.
Submitting a fast claim
The advantage in submitting a fast claim if you can is that it's just that - fast. The only thing you have to do is fill in the form you were sent by the authority and send it off, along with any evidence they request. However, it's helpful at this stage to include any additional evidence you have to boost your case.
Use this checklist to remember what evidence to include
- Copies of repair invoices and proof of payment
- Copies of your mechanic's statement on cause of damage
- A note (or map) of the pothole's location
- Note of the date and time the damage occurred
- Photos of the damage
- Photos of the pothole if possible
- Notes from anyone who saw the incident
To strengthen your claim, we've also created a short template letter to send alongside the form, which briefly outlines your case and makes it clear that if you don't receive compensation for the damage to your car, you're ready to take it further. Although you don’t have to send this, it'll show the authority you’ve done your homework and are prepared to take it on.
FREE template letter. Download a short template letter to send in with your fast claim.
Hurrah - the claim's submitted
After you've sent the form off, it may take a while to hear back. When you do, one of the following three things will happen:
You win and get full costs back - victory!
If this happens, congratulations! Your claim's finished.
You get a partial offer.
Be prepared to compromise - it saves time and hassle. If the authority doesn't offer all the money for the repairs, just a chunk of it, it's worth understanding that taking this further is going to take time and there's no guarantee of success.
Is it offering you enough, and is it worth the time and effort of chasing for the full amount? You may want to reply and say: "I think you should give me a little bit more" to see if it'll give you a better offer. If you're still not satisfied, move on to How to make a full claim.
Your claim is rejected.
There's a fair chance that after you've submitted a fast claim, it'll be turned down. If so:
Don't be put off: this is quite common. It's a lot easier for organisations to reject people now - even those who will succeed at the next stage.
If you're rejected, the authority may well quote part of Section 58 of the Highways Act in its rejection letter. That says:
"This requires that a court shall have regard to whether the highway authority knew or could reasonably be expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway."
It may sound convincing, but don't give up automatically. Even if the authority/agency was unaware of the pothole because it wasn't reported, you still have a chance. That's because you may still be able to prove the road wasn't maintained properly. The next section shows you how to do that.
How to make a full claim
If you weren't able to make a fast claim - or you did, and it was rejected - the next step is to make a full claim. Be warned though, it's not a simple process. We'll take you through it step by step and give you template letters to make it as straightforward as possible.
In a nutshell, you're going to do a Freedom of Information request to find out if the authority was inspecting and repairing the road as often as it was meant to. If you can prove it was negligent, you can argue it should pay for your repairs.
Often the authority will pay up if you've proved its negligence, but in a few cases you might need to go to the small claims court.
This is all about digging into the detail to help give your claim a bigger chance of success.
You're going to use the Freedom of Information (FOI) Act to get information from the authority responsible for maintaining the road the pothole was on. This Act enables you to request data from public sector bodies and they have to give it to you by law.
Don't worry - it sounds complicated but it's actually quite simple. Plus, we've created a template letter you can use below, so we've already done the hard bit for you.
Your FOI request will get two bits of information from the authority:
Its inspection logs that show how it maintained the road that damaged your vehicle.
Its policy for inspecting and repairing its roads. (In many cases, this will be the same as a national policy, but sometimes it differs so it's best to check).
Sometimes the authority may say you don't need an FOI request to get this info, but it's easier to do one all the same. Using an FOI request means the authority legally has to respond within 20 working days. The system's not perfect - sometimes it takes longer anyway - but most people find that an FOI's the easiest way of making sure your request isn't lost in the system.
How to make your FOI request
The simplest way of submitting an FOI request is to email the authority - technically, you don't have to use any special form of words, just say you're making an FOI request and ask them your questions. To save you the hassle though we've put together a template letter for you to send - just fill in your details and send it off.
Warning: While FOI requests are free across most of the UK, it's worth noting organisations in Scotland can charge a fee of up to 10% if they think it'll cost them more than £100 to track down the information you need.
If this affects you, they'll have to tell you what it'll cost first - then it's up to you to decide if it's worth it as there's no guarantee your claim will be successful. For more details see the Scottish Information Commissioner's website.
If you do decide to send in an FOI request, use our template below.
FREE template letter. Download an FOI request letter to send in.
Although in theory you can send your request to anyone at the authority and they should pass it on to be dealt with, in practice it's best to contact the FOI department directly. This should be listed on the authority's website - if not, call it up and ask.
The authority has 20 working days to respond to your request. Usually, you'll get a response before the 20 days is up. If you don't, send a reminder on the 20th day. If they still don't play ball, complain to the Information Commissioner's Office.
Be mindful of the impact of FOI requests, which can put real pressure on councils. Only submit one if you couldn't use a fast claim.
Once you've got the response to your FOI request, you'll need to go through the information they've sent back with a fine toothed-comb. Be warned, this is NOT a five-minute job, so take a seat and make yourself a cuppa.
The first thing to check is the inspection logs, which should tell you how often the road you came a cropper on was inspected and repaired. Here are the key things you're looking for:
How often were inspections done, and how were they done? Don't just look at the frequency of inspections. Check the following:
- How were they carried out - by foot or in a van?
- If it was in a van, how fast was the van travelling? Was this too fast to see a pothole?
- Was there just one driver or a driver and an inspector?
- Did the road have a history of problems? If so, were inspections done more frequently?
- If the authority also had to do safety patrols, how were these carried out, and how frequent were they?
If the pothole had already been reported, what action was taken?
- How did the authority define the risk created by the pothole? How was it categorised?
- If it was known about, how long did it take to fix the pothole?
- If repairs were made, did it fix the pothole so that it was no longer a hazard?
- If no repairs were made, how long had the authority known about it before you hit it?
When the authority responds it should send out its road maintenance policy. There are two things you need to check here: first, what its own policy is for inspecting and repairing roads, and second, whether this meets national standards.
The idea here is to see if the authority was negligent. If it didn't inspect the road your pothole was on as often as it should have, or didn't repair it as quickly as it should have, you've got a decent case. Sit down with the road maintenance policy and inspection logs in front of you and go through them line by line, matching up how they compare.
If you believe you have a case, you'll need to build an argument. You need to see if there are any discrepancies between the authority's maintenance policy and what it actually did. The authority may have a justification for some discrepancies, but the more you can find, the better your chance of success. Here are the key things to look out for:
Claiming from a council?
Confusingly, individual councils in England, Scotland and Wales can make up their own road maintenance policies, although they're often based around a national code of practice. So if you're claiming from a council you'll need to go through the policy they send you carefully. In particular, check:
- How it defines road defects (ie, potholes).
- How quickly these defects should be repaired (eg, 24 hours or 28 days).
- How often inspections should be carried out.
- Once they've emerged, how quickly these defects should be identified.
- How inspections should have been undertaken (eg, by a slow-moving vehicle with a camera).
There is also a separate document called the Well-maintained Highways Code of Practice which sets out national standards. However, even if the council followed its own rules, there's a chance its rules weren't adequate - so you might still be able to argue negligence.
Claiming from Highways England?
Highways England's policy comes from two documents - the Network Maintenance Manual and the Routine & Winter Service Code. Yes, they sound like a cure for insomnia - but know the right sections and they'll give you extra ammunition.
What the winter code says: Potholes should be identified and verified within 24 hours on motorways with heavy traffic, or seven days on less busy carriageways (see flow diagram, p24). The Network Maintenance Manual tells Highways England how to do safety inspections.
What the manual says: Page 6 (part 126.96.36.199) says inspections should be "carried out by two trained personnel operating from a slow moving vehicle".
It adds: "In particular circumstances (eg complex road junctions), inspection personnel may need to proceed on foot either to confirm suspected faults or complete the inspection.
"Inspections must identify deficiencies which represent, or might lead to, a danger to the public and therefore require immediate or urgent attention."
What this means: The vehicle should be travelling at less than 40mph during the inspection. If the road that damaged your vehicle was at a complex junction, inspectors may need to have made checks on foot. Plus, if the pothole that damaged your vehicle created serious risk, it should have been repaired within 24 hours of identification.
If two people are unavailable to do the inspection, then one person and a data capture device should be used.
If you find out from your FOI request that inspections were done at more than 40mph, or that there was just one driver and data capture devices weren't used to replace a second person, this will help your claim.
What the winter code says: The code refers to potholes as 'category 1 defects' (see p28) and sets out various requirements.
What it means: Potholes should be made safe within 24 hours of being identified or reported if, as the code says, there's an "immediate or imminent risk of damage to a third party's property or equipment". Permanent repairs should then happen, where needed, in 28 days.
This also applies to potholes found on adjacent footways and cycle tracks the agency's responsible for - so cyclists may be able to claim in these cases. Whatever category Highways England gives a road, the repair timeframe above applies to all of them.
Claiming from Traffic Wales?
Traffic Wales is the Government agency responsible for maintaining motorways and major trunk roads in Wales. This is the organisation you report the pothole to, though your claim will be passed to the Welsh Government's claim investigation unit.
The road maintenance policy Traffic Wales uses is the Trunk Road Maintenance Manual. This isn't online so has to be requested, but you should have received Part 2: Routine Maintenance of Highways in the response to your FOI request. We've picked out the parts below that could support your claim below.
What the network manual says (p7, sec 2.1.3): "Safety inspections are designed to identify those defects which are likely to create a danger to the public and therefore require immediate or urgent attention... Additional safety inspections may be required in response to reports or complaints from the police, other organisations and the public."
What this means: Safety inspections on the road that damaged your car should have identified a pothole. If it wasn't spotted before you hit it, the authority needs a good reason. It might be, for instance, that inspections were done properly and at the required frequency, but the pothole emerged after the last inspection and wasn't reported.
The manual goes on to dictate how often certain types of road should be inspected.
What the manual says: Inspection category A and B roads "shall receive a safety inspection at intervals of 7 days". Inspection category C roads "shall receive a safety inspection at intervals of 28 days".
What this means: In Wales, motorways including the M4, the M48 and the A48 (M) are all in category A, so should be inspected once a week. Most major roads fit into category A and B, though the manual does not provide a list of category C roads. More roads and categories are listed on page 9 of Part 2: Routine Maintenance of Highways.
The manual also specifies how inspections should be carried out.
What the manual says: "Inspections shall normally be mobile inspections carried out from slow moving vehicles, with the occasional need to proceed on foot, at frequencies which reflect the importance of a particular road."
What this means: Inspections should be carried out in a vehicle travelling slower than 40mph. So if you find that they were carried out at 40mph+, or needed to be done on foot and weren't, this will help your claim.
In addition to safety inspection, in Wales extra 'safety patrols' should be carried out.
What the manual says (p8, 2.1.6): "Safety patrols shall be undertaken on inspection category A roads daily (including weekends and bank holidays) between the weekly safety inspections."
What this means: These patrols are slightly more detailed than safety inspections. If they weren't done daily on the road that damaged your vehicle, or they were and the pothole wasn't logged and repaired, it's a big boost to your claim.
Another critical thing Traffic Wales has to do properly is to fix defects (potholes) quickly. The manual categorises potholes as 'category 1' defects, as they present an immediate hazard to drivers.
What the manual says (p7, sec 2.1.4): Category 1 defects are: "Those which require prompt attention because they represent an immediate or imminent hazard."
It adds: "Category 1 defects shall be corrected or made safe at the time of inspections, if reasonably practicable. If it is not possible to correct or make safe the defect at the time of inspection, repairs of a temporary or permanent nature shall be carried out as soon as possible and in any case within a period of 24 hours."
"Temporary repairs shall be inspected regularly as part of a safety inspection and a permanent repair carried out within 28 days."
What this means: Essentially, this shows that potholes should be made safe within a day, then fixed permanently within 28 days. So you'll need to check if Traffic Wales obeyed this rule.
Claiming from Bear Scotland, Amey and Scotland Transerv?
Bear Scotland, Amey and Scotland Transerv are road maintenance agencies contracted by Transport Scotland - the Government body that controls the country's motorways. The agencies are responsible for maintaining big trunk roads, carriageways and motorways in north east and north west Scotland.
Transport Scotland tells us the contracts are based on the same principles but small differences are taken into account based on the geographical areas. However, the the key bits we've quoted below are the same in all of the contracts.
You can see the contracts it holds for different areas on Transport Scotland's website. Again they sound like a cure for insomnia, but the right sections will give you extra ammunition and you don't have to read the whole thing either - we've picked the most relevant bits below.
What the contracts say: "Safety Inspections shall be carried out at frequencies not exceeding seven days on all Trunk Roads" to "identify Category 1 and Category 2 Defects"- that includes potholes. Inspections should check " all that can be seen from a slow moving vehicle within the boundary of the Trunk Road".
What this means: If you discover any of the maintenance companies failed to inspect the road often enough, or did but failed to identify the pothole, it'll boost your claim. If you find out the inspection vehicle was travelling at 40mph+, that could also be a point to raise. Someone travelling at this speed can easily miss a pothole.
From the off, the contract says Scottish ministers require that: "Risk of damage to or destruction of third party property within the unit shall be minimised."
This is an underlying argument you can deploy. But the important parts are in the nitty gritty. We've summarised them, but you can see 'em on the links we've provided below.
What the contract says: The Operating Company's inspection team or initial Incident Response Resources shall make the Category 1 Defect safe when identified". Temporary repairs should be carried out on potholes "no later than 24 hours after they're identified". Permanent repairs should be done "within 28 days" of the pothole being logged.
What this means: If the pothole that damaged your vehicle was reported (or spotted during an inspection) before you hit it, it should've been logged onto Bear Scotland, Amey or Scotland Transerv's system in a day. It should then have been repaired within the specified time period. Where the companies can't do anything immediately about a pothole, it must put signs up. If they tell you it couldn't repair the defect immediately, check if any signs were erected at the time, and if they were clear enough. If they weren't, this could back your case.
You can read the sections we've summarised above, for the different maintenance companies who deal with north east, north west and south east Scotland, via the following links.
North-east Scotland: Click this Transport Scotland link and scroll down to sections 1.3/1.4 and 2.
South-east Scotland: Click this Transport Scotland link, and scroll down to sections 1.3/1.4 and 2.
North-west Scotland: Click this Transport Scotland link and scroll down to sections 1.3/1.4 and 2.
- South-west Scotland: Click this Transport Scotland link and scroll down to sections 1.3/1.4 and 2.
For each area, Schedule 1 Part 1, Conditions of Contract gives you a definition of a category 1 defect (see page 3 of Definitions). It says category 1 defects are those which "present an immediate or imminent hazard" - so potholes fall under this category.
Claiming from Northern Ireland's Department for Regional Development (DRD)?
The DRD has a division called TransportNI (formerly the Roads Service) that maintains some of the road network in Northern Ireland. Most of the motorway network's are managed by two DBFO companies (Design, Build, Finance, Operate) - Highway Management City and Amey Roads NI.
TransportNI is bound by a set of rules that dictate how it should inspect roads and how quickly it should fix potholes. These are included in a wider document called Maintenance Standards for Safety.
Bizarrely, this document's not available to the public. But you should have received a copy in response to your FOI request - in any event, we've cherry-picked the most relevant sections for you below...
TransportNI has to inspect certain types of road at specific frequencies. For example, motorways have to be inspected daily from Monday to Saturday.
It's a little different for other types of road. The table show how often these other types should be inspected:
Safety inspections for roads & car parks
Type of road Traffic level/location Description Number of inspections required Carriageways High traffic 5,000+ vehicles/day Once a month Medium traffic 500-5,000 vehicles p/day Once every two months Low traffic Under 1,500 vehicles p/day in urban areas, or under 500 in rural areas Once every four months Car parks Towns/city centres - Once a month All others - Once every two months Source: Maintenance Standards for Safety, Northern Ireland
The Maintenance Standards for Safety also sets out how quickly potholes should be fixed after they've been identified, depending on how deep they are. The times apply from the point when TransportNI has identified the pothole, or it's been reported by the public and logged on its system.
Pothole repair timescales
Type of road Traffic level/location Description Pothole response times to repair or make safe Potholes 100mm+ deep Potholes 50-100mm deep Potholes 20-50mm deep Potholes 20mm deep or less Carriageways (urban) (1) High traffic 5,000+ vehicles/day Next calendar day Next calendar day Five working days Next available time or will review condition at next inspection Medium traffic 500-5,000 vehicles /day Next calendar day Five working days Four weeks Next available time or will review condition at next inspection Low traffic Under 1,500 vehicles /day Next calendar day Five working days Four weeks Next available time or will review condition at next inspection Carriageways (rural) High traffic 5,000+ vehicles/day Next calendar day Five working days Five working days Next available time or will review condition at next inspection Medium traffic 500-1,500 vehicles/day Next calendar day Five working days Four weeks Next available time or will review condition at next inspection Low traffic Under 500 vehicles/day Five working days Four weeks Next available time or will review condition at next inspection Next available time or will review condition at next inspection Car parks Towns/cities - Next calendar day Next calendar day Five working days Next available time or will review condition at next inspection All others - Next calendar day Five working days Four weeks Next available time or will review condition at next inspection Source: Maintenance Standards for Safety, Northern Ireland (1)
What about motorways?
In Nothern Ireland, the motorways are managed slightly differently. Two DBFO companies (Highway Management City Limited and Amey Roads NI Limited) look after the bulk of the motorway network. Here's what a spokesman told us:
Surface defects on those parts of the network under DBFO control, fall into two categories; Category 1 and Category 2. Category 1 defects are defects which require prompt attention because they represent an immediate or imminent hazard. Category 2 defects are defects which do not represent an imminent hazard and can be dealt with under normal planned programmes of work.
Category 1 defects should be corrected or made safe at the time of inspections, if reasonably practicable. If it is not possible to correct or make safe at the time of inspection, repairs of a temporary or permanent nature shall be carried out as soon as possible and in any case within a period of 24 hours. If a temporary repair is carried out, it should be inspected regularly and made permanent within 28 days.
For those parts of the motorway network still maintained by DRD/TransportNI (Ballymena by-pass and M12) the same response times apply as per other high traffic roads.
Once you've gone through all the small print, make a list of all the discrepancies you've found between what the authority was SUPPOSED to do and what it ACTUALLY did. If you've found one or more significant discrepancies, your claim's got a good chance.
Check the authority meets national standards
After looking at whether the authority followed its own road maintenance and inspection policy, there's one more thing to check: does the policy itself meet national standards?
This only applies to councils, which each operate their own different standards. If you're claiming from anyone else, skip this step and go straight to Step 4: Submit your claim.
Although individual councils can make up their own set of rules, there is a separate document called the Well-maintained Highways Code of Practice which sets out national standards. Even if the council followed its own rules, there's a chance its rules weren't adequate - so you might still be able to argue negligence.
Fortunately, you don't need to read the national guidance in full (phew). We've highlighted a few sections that could support your claim below.
What the code says (p110, sec 9.4): It says: "Safety inspections are designed to identify all defects likely to create danger or serious inconvenience to users (drivers) of the network (roads) or the wider community."
"Such defects should include those that will require urgent attention, (within 24 hours), as well as those where the locations and sizes are such that longer periods of response would be acceptable."
It adds: "Inspections are normally carried out in a slow-moving vehicle, or on foot in busy urban areas."
What this means: The 'defects' referred to are potholes. Some potholes which create a serious risk need be fixed within 24 hours. If the pothole that damaged your vehicle fits this description, and wasn't fixed within this timeframe, your claim will have a good chance.
Where the code says slow-moving vehicle, this tends to mean less than 40mph. So if the inspection on your road exceeded this, or if it should've been done on foot and wasn't, this'll be another boon for your claim.
Frequency of safety inspections (p111-112, sec 9.4.5-9.4.9)
The code says that authorities should inspect roads at certain frequencies (see the table below). They should also respond to the identification of a pothole and fix it in certain timeframes. This is based on a risk assessment of each road, the amount of traffic and the number of accidents.
Authorities also have to consider if the road provides access to schools, hospitals, or when local councils are concerned, if it's used by vulnerable pedestrians such as elderly people.
Safety inspections for roads
|Official road category||Type of road||Description||Number of inspections needed|
|Strategic route||Trunk roads and major A roads||Routes for fast, long-distance traffic with no paths and/or little pedestrian traffic. 40mph+ speed limits, few junctions, no parking.||Once a month|
|Main distributor||Major urban roads linking to trunk roads and A roads||In urban areas, 40mph speed limits. Limited path access, restricted parking at peak times.||Once a month|
|Secondary distributor||Urban roads and bus routes carrying local traffic||Link large villages to trunk roads, A roads and major urban roads. 30mph speed limits in built-up areas, many pedestrian, zebra crossings, parking.||Once a month|
|Link road||Rural roads that link to big and small urban roads, many junctions, path access||Link small villages to major roads. Not always two lanes, 30mph speed limits.||Every three months|
|Local access||Serve few properties with limited access||Serve rural villages. Link to individual homes, single lanes. Often residential cul-de-sacs.||Once a year|
|Source: Well-maintained Highways Code of Practice.|
What the code says (p113 sec 9.4.17 and 18): "The degree of risk from a pothole depends upon not merely its depth but also its surface area and location."
The code then defines the degree of risk via two categories:
- Category 1 - which need prompt attention because they're an immediate hazard
- Category 2 - all other defects.
The code adds that Category 1 defects "should be corrected or made safe at the time of the inspection", or if that's not possible "within 24 hours. Permanent repair should be within 28 days."
What this means: If you have evidence to show the pothole you hit constituted a category 1 defect, and wasn't repaired in these timeframes after an inspection, this'll bolster your claim.
Most potholes will be classed as category 1 defects, but if the pothole you hit is category 2, the authority has its own response times to fix them. Your FOI response should tell you these.
If you do find that the council's road maintenance policy falls short of national standards, you can use this as a powerful line of argument when you make your claim.
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Deep breath; it's time to up the ante and submit your full claim. Don't worry, we've done a lot of the legwork - our free template letter will help and you can use it as a model for your claim letter.
The letter you send will set out your argument using everything learned so far. Remember, keep calm and try to use neutral language, nothing too emotive. This'll help if your letter is ever used in court proceedings down the line (let's hope it never gets that far).
You need to state clearly that you're owed for the cost of repairs as the authority is liable, and explain why you believe it has been negligent. You'll then have to argue either that the authority failed to follow its own road maintenance and inspection policy, or that its policy failed to match national standards (or, very occasionally, both).
Whoever you're claiming from, make sure you closely refer to the evidence throughout your claim. If you think the road wasn't inspected frequently enough, for example, quote the right bit of the road repair history to prove that's the case.
Finally, ensure you include all the relevant evidence you've collected. To recap, here's a checklist of everything to include.
- Copies of repair invoices and proof of payment
- Copies of mechanic's statement on cause of damage
- A note (or map) of the pothole's location
- Note of the date and time the damage occurred
- Photos of the damage claimed
- Photos of the pothole if possible
- Copy of the road maintenance policy if quoting it
- Copy of the road repair history if quoting it
FREE template letter. Download a template letter to send in for your full claim.
First, you'll usually just get a confirmation of receipt of your claim. You may be passed on to a firm that handles claims for the council, in which case it could be a couple of months before you get a response. If not, it's usually about a month before you hear back.
Then, one of these three things will happen:
You win and get full costs back - victory!
The authority will send a letter and a cheque. Case closed. You're getting the money back and don't need to read any more. Well done! Now let us know how you did it in the forum.
You get a partial offer. Be prepared to compromise.
The authority might make a partial offer for the repair costs. If this happens, be willing to compromise - it'll save time and hassle. Taking it to court from here can be an expensive process and you're not guaranteed to win.
Your claim is rejected.
Despite all your hard work, there's still a chance the authority may flat out reject your claim. Sometimes, they'll send a detailed explanation of why they won't make an offer. It might look like the Magna Carta - in one case a council sent a 200-page refusal letter to a driver who'd claimed for £40.
If you go through the whole process and they still reject your claim, your options are unfortunately limited (unless you're making a claim in Northern Ireland). You do have the right to take your claim to the small claims court (or sheriff's court in Scotland) though.
Don't think automatically of judges and wigs - the small claims court is the low-hassle way to take legal action for up to £10,000 (£3,000 in Scotland) against a firm or individual. But be confident you've got a case before you start, as new fees which were bought in last year mean you'll now pay twice as much if you lose.
You can see full info for small claims in England, Wales and Scotland in our Small Claims Court guide.
If you still believe there are discrepancies between what the DRD should have done and what it did in terms of maintaining the road you encountered a pothole on, you can write back to them, explain these discrepancies and state that you're making an official complaint.
If you're unsatisfied about the general way your claim was handled, you can also complain to the TransportNI Claims Unit. This is more about delays and communication though, rather than the decision itself.
If you exhaust the complaints process and there's still no satisfactory resolution, then unlike in the rest of the UK, there is somewhere else to turn.
You can take your case further by contacting the free Northern Ireland Ombudsman. It will provide you with an independent adjudication - if this goes against you, then it's highly likely any court action will be unsuccessful.
How did your pothole claim go? We want your feedback of this guide, and also to hear how your pothole claim went. Please let us know what you think of it, suggest improvements and tell us your experiences in the Pothole claims discussion forum thread.
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