The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the way the Council dealt with his insurance claim for damage to his vehicle. It is reasonable for him to use the legal remedy available to him to pursue his damages claim in court. It is reasonable for Mr X to pursue the Freedom of Information (FOI) and data protection issues with the Information Commissioner’s Office (ICO), as it is the body best placed to consider them, and there are no good reasons for us to investigate them.
The complaint
Mr X’s vehicle was damaged by a defect on the Council’s highway. He made a compensation claim for the damage but the Council’s insurers did not accept liability and denied their negligence caused it.
Mr X complains the Council: unfairly rejected his insurance claim; is operating an insurance process which misuses legislation to reject claims; misused the Freedom of Information (FOI) Act by requiring him to submit an FOI request to get copies of reports they had used to set out their position; may have breached data protection by disclosing documents with their employees’ names and telephone numbers.
Mr X says he has suffered financial loss from the vehicle damage and been caused stress and inconvenience. He wants an inquiry into the Council’s insurance claims process, for the process to be changed, and for the Council to be held to account.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by Mr X, and the Ombudsman’s Assessment Code.
My assessment
The allegation at the core of Mr X’s complaint is that it was Council negligence in its road maintenance which led to damage to his vehicle, making it liable for that damage. The role of the Ombudsman is to consider complaints of administrative fault. We cannot decide liability in complaints about property damage. This is for the Council’s insurers and ultimately for the courts. As the insurers have rejected Mr X’s claim that the Council was liable, only the court can now decide if there was any Council negligence which caused the damage. If Mr X believes the Council has misused or misapplied the relevant legislation to reject his claim, that would be a legal argument for a court to determine. The court can assess what damages, if any, the Council should pay. Also, unlike the Ombudsman, the court can issue an order to a party to pay damages.
Mr X may pursue his claim by taking the Council to court. It is reasonable for Mr X to do so as the fees for making a claim are relatively modest and Mr X may ask for those fees to be reimbursed if his claim succeeds. Also, legal representation for such claims is widely available.
Section 58 of the Highways Act 1980 also gives councils the right to put forward a defence in court against claims for damage from the condition of the highway. We will not remove the right of the Council to use that defence by investigating this part of Mr X’s complaint.
Mr X also raises concerns about the Council’s application of FOI and compliance with data protection legislation. These are matters best considered by the Information Commissioner’s Office (ICO). As the specialist body created by national government to deal with such issues, it is reasonable for Mr X to refer them to the ICO.
Furthermore, there is no good reason for us to investigate these issues because they do not cause such significant personal injustice to Mr X to justify us doing so. I recognise Mr X’s submission of an FOI request for further information on the Council’s defence against his insurance claim may have been annoying. But that optional step in the process did not cause him such injustice to warrant us investigating the matter further. Mr X’s concern about the Council’s data protection compliance relates to Council employees’ names and telephone numbers. Any disclosure of that information caused no personal injustice to Mr X, because it was not his data being released.
Final decision
We will not investigate Mr X’s complaint because: it is reasonable for him to use the legal remedy available to him and pursue the liability decision he seeks by taking the damages claim to court; it is reasonable for Mr X to pursue the FOI and data protection concerns with the ICO as it is the body best placed to consider them, and there are no good reasons for us to investigate them.
Investigator's decision on behalf of the Ombudsman