Who is actually liable — and it is not always the council
You claim from whoever is the highway authority for that stretch of road. Claim from the wrong body and you simply waste time, so check first:
- Most ordinary roads — your local council (county, unitary or borough). This covers the vast majority of potholes.
- Motorways and major A-roads (England) — National Highways, the government company that maintains the strategic road network.
- Some major roads in London — Transport for London (TfL) manages the red routes and other key roads; smaller roads stay with the borough.
- Private roads — the landowner, not a public authority. There is no Highways Act duty on a private road.
Quick way to find the authority
Use the official
GOV.UK report-a-pothole tool — type your postcode and it sends you to the right council page. If the road is a motorway or major A-road, it is National Highways; in central London, check whether it is a TfL red route. The legal duty itself sits in
section 41 of the Highways Act 1980.
Why so many claims fail — the section 58 defence
This is the single most important thing to understand before you claim. Section 41 puts a duty on the authority to maintain the road. But section 58 of the Highways Act 1980 gives it a statutory defence: if it can prove it had taken all reasonable care — a proper system of inspecting and repairing roads, in line with the national code of practice — it is not liable, even if a pothole did cause your damage.
In practice, authorities defend most claims this way. They argue either that the pothole was not there at the last inspection, or that it had not been reported, or that their inspection regime was reasonable. To win you generally have to show, on the balance of probabilities, that there was a dangerous defect that caused your damage AND that the authority’s system fell short.
The honest truth: evidence wins or loses it
A large share of pothole claims are rejected on the section 58 defence — we are not going to promise you a payout. But the authority must actually prove its defence, not just assert it. If your photos clearly show a deep, dangerous defect and you can show the pothole had been reported and left, you are in a far stronger position. Vague photos with no scale, or a shallow defect, will almost always lose. So treat the evidence step below as the whole ballgame.
Build the evidence — before the pothole is filled in
Authorities often repair a reported pothole quickly, which can wipe out your proof. So gather everything on the day if it is safe to do so:
- Report the pothole first via GOV.UK or the council’s own site — this creates a dated record that you (and others) flagged it.
- Dated photos from several angles, with a coin, ruler or shoe in shot for scale, plus a clear shot showing the width and depth. The rough rule of thumb is a defect deeper than about 40mm (one inch) — measure it.
- The exact location — road name, nearest house number or landmark, and a wider photo showing where it sits in the carriageway.
- Photos of the damage to your car — buckled wheel, split tyre, etc.
- The repair invoice or a written quote — your claim is for this actual cost. Keep receipts.
- Witness details if anyone saw it happen, and the date and time of the incident.
Photos must show the dimensions
Courts have made clear that it is not enough to show a pothole exists — your photos must be clear and helpful enough to show how big and deep it was. A photo with something for scale beats ten blurry photos. This is the difference between a claim that survives the section 58 defence and one that does not.
Claim direct — and keep your insurance out of it
You usually have two routes, and the order matters for your money:
| Route | What happens |
|---|
| Claim direct against the authority | Send the authority your evidence and repair invoice. If it accepts liability, it pays your repair cost. A direct claim does not touch your own car insurance — no excess, no lost no-claims discount. |
| Claim on your own insurance | Faster if you have comprehensive cover and the bill is large — but you usually pay the excess and may lose your no-claims discount, which can cost more over time. |
For most pothole damage it is worth trying the direct claim first. Submit a clear claim to the authority with your evidence, your repair invoice, and a short factual account of what happened and where.
Do this now
Just hit a pothole? Photograph it today — several angles, something for scale, and a measurement of depth — before the council fills it in, then report it on GOV.UK to create a dated record.
Get a written repair quote, then submit a direct claim to the right authority. If you want help wording the letter, our letter writer can draft it.
If your claim is refused
A refusal usually leans on the section 58 defence — but the authority must
prove it. Ask for its
inspection and maintenance records for that road (a Freedom of Information request can help) and check them against its own policy. If the records are thin, or the pothole had been reported and left, you can take it to the
small claims court. In England you generally have
up to six years to bring such a claim (
five in Scotland) — but claim promptly, while the pothole and your evidence still exist.
Scotland, Wales & Northern Ireland
The Highways Act 1980 is an England-and-Wales statute and the detail here is England-focused. Wales has its own councils and Welsh Government trunk-road agents; Scotland uses councils and Transport Scotland (and the claim limit there is five years); Northern Ireland’s roads are maintained by the Department for Infrastructure (DfI Roads), not councils. The principle — report it, evidence it, claim from the responsible roads authority — is the same; check the local route with that authority.