The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s and its insurer’s refusal of liability for pothole damage to his car. It is for the courts to establish liability in property damage complaints. It is reasonable for Mr X to pursue the matter in court. We do not investigate councils’ internal claims or complaints processes in isolation when not pursuing the core issue giving rise to them. It is reasonable for Mr X to refer his complaint about the Council’s Freedom of Information (FOI) responses to the ICO, which is the body best placed to consider it.
The complaint
Mr X complains the Council has: refused his claim for damage to his car caused by a highway pothole; delayed in dealing with his insurance claim; made errors in its responses to his Freedom of Information (FOI) request.
Mr X says he feels undervalued and distressed by the Council, disheartened by the process, and has lost confidence in the Council. He wants the Council to reimburse him the cost of the damage to his car.
The Ombudsman’s role and powers
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 FOI. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about FOI, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
How I considered this complaint
I considered information provided by Mr X, and the Ombudsman’s Assessment Code.
My assessment
Mr X has the right to make a court claim for the damages he seeks and we cannot normally investigate when someone can take the matter to court. We can exercise discretion to investigate but there are no good reasons to do so here. I say this because we cannot establish liability in complaints involving property damage. Claims for damage to property are a matter for councils’ insurers and, ultimately, for the courts. As the insurers have rejected Mr X’s claim, only the courts can now determine if the Council’s road maintenance was negligent, if it is legally liable for the damage caused to his car, and if any payment or other remedy is due to him. There is a simple, low-cost legal procedure open to anyone to make this kind of claim in court.
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 Mr X’s complaint.
For these reasons, it is reasonable for Mr X to take court action to pursue the property damage matter and we will not investigate.
Mr X has also complained about the Council’s claims process. The core issue in the complaint is the damage to Mr X’s car, not the claims process, as he would not have made a claim had it not been for the pothole damage. Where we are not investigating the core issue which gave rise to a claim or complaint, we will not investigate a council’s internal processes in isolation. We do not consider it a good use of our resources to do so. That limitation applies here, so we will not investigate this part of Mr X’s complaint Mr X says he made requests of officers under the Freedom of Information (FOI) legislation during his claim. He says he had to ask the Council twice for its response, then received the wrong information, delaying the insurance process by a week. We normally expect someone to refer complaints about councils’ responses to FOI requests to the ICO. We have discretion to investigate, but it is reasonable for Mr X to refer this part of his complaint to the ICO. This is because the ICO is the national government body created with the specific remit to consider organisations’ compliance with data protection laws, and its decisions can be appealed to the First Tier Tribunal (Information Rights). It is the body best placed to consider this part of Mr X’s complaint, should he wish to pursue it.
Final decision
We will not investigate Mr X’s complaint because: it is reasonable for him to use the legal remedy available to him to consider his property damage claim and get the financial outcome he seeks; we do not investigate councils’ internal claims or complaints processes in isolation when not pursuing the core issue giving rise to the claim or complaint; it is reasonable for him to refer his complaint about the Council’s FOI responses to the ICO, which is the body best placed to consider it.
Investigator's decision on behalf of the Ombudsman