Summary: We will not investigate Ms X’s complaint about the state of the public highway and the Council’s handling of her compensation claim. This is because it would be reasonable for her to take the matter to court. We will not investigate her complaint that the Council shared information without her consent as the Information Commissioner is better placed to consider it.

The complaint

1. The complainant, Ms X, complains the Council did not ensure she received a response to her complaint from a contractor who left the surface of a road (the public highway) in a dangerous state. She says the poor state of the highway caused her to have an accident and she has no faith in the Council to carry out the necessary repairs to make it safe for cyclists. She also complains the Council shared information with the DWP about her claim for compensation without her consent and despite the claim still being open.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’.
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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)

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How I considered this complaint

6. I considered information provided by Ms X and the Ombudsman’s Assessment Code.

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My assessment

7. The injustice Ms X claims stems from her accident, which she says is the result of the road surface being left in a dangerous state.
8. But it is not for us to determine the Council’s liability for Mrs X’s accident and any damages or injuries she suffered. These are matters for the courts. The law provides a specific defence against such claims and it would not be appropriate for us to deny the Council the opportunity to use it.
9. Ms X may also apply to the court for an order requiring the Council to carry out repairs to the highway, if she believes it is out of repair. The process for this is set out at Section 56 of the Highways Act 1980. We would not investigate the matter further because there is no set level of maintenance under the Act. It is therefore a question of interpretation as to when a council must carry out repairs and only the courts can determine whether the Council has fulfilled its duty.
10. While Ms X is unhappy about the way the Council dealt with her complaint, the courts have said that where we cannot investigate a complaint about the main or underlying issue, we cannot normally investigate related issues either. (R (on the application of M) v Commissioner for Local Administration in England [2006] EWHC 2847 (Admin)). So, where the substance of a complaint is not subject to investigation, we do not investigate the Council’s handling of the issue in isolation.
11. Ms X separately complains the Council shared the details of her compensation claim with the DWP without her consent but it is for the Information Commissioner rather than the Ombudsman to determine if this amounts to a breach of the General Data Protection Regulation (GDPR). If the Information Commissioner considers the Council has breached the GDPR Ms X may apply to the court to determine whether she is entitled to any payment for damages.

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Final decision

12. We will not investigate this complaint. This is because it would be reasonable for Ms X to apply to the court to determine whether the Council has fulfilled its obligation to maintain the public highway and to determine its liability for her accident. The Information Commissioner is better placed to decide whether the Council’s disclosure to the DWP amounts to a breach of the GDPR.

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Investigator's decision on behalf of the Ombudsman