Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s handling of his freedom of information request and claim for damage and personal injury. The Information Commissioner is better placed to deal with Mr X’s concerns about freedom of information/data protection and if Mr X believes he is entitled to compensation it would be reasonable for him to make a claim to the Council and take the matter to court.

The complaint

1. The complainant, Mr X, complains about the Council’s handling of his ‘freedom of information’ request and that it misled him about his claim for property damage and personal injury resulting from hitting a pothole in the road.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

3. 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)
4. 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.

Back to top

How I considered this complaint

5. I reviewed Mr X’s complaints and the Council’s responses. I shared my draft decision with Mr X and invited his comments.

Back to top

What I found

6. Mr X hit a pothole in the road in June 2018. He says the accident damaged his tyre and caused him whiplash.
7. Mr X complained to the Council about the incident and at the same time submitted a freedom of information request. Four weeks later the Council wrote to Mr X declining to provide the information he had requested as it was aware he had submitted a claim to its claims handler. Mr X knew he had not made a claim and assumed the Council had passed on his information without his permission. So he made a new complaint about a possible breach of the general data protection regulations.
8. The Council did not respond to Mr X’s complaint until he wrote again in December 2018. At that point it explained it had not passed Mr X’s details to its claims handler; it suggested its information team had assumed Mr X had made a claim but confirmed there was no claim in progress. It therefore invited Mr X to submit the information necessary to begin the process. Mr X then complained the Council had misled him and that his claim would be delayed as he would need to start again. He wants the Council to pay him compensation for the damage to his car and for his personal injury. He also wants the Council to apologise and make a payment in recognition of his mental anguish resulting from the Council’s poor handling of the case.
9. The Ombudsman will not investigate this complaint. If Mr X is unhappy with the Council’s handling of his freedom of information request, and/or if he believes the Council has shared his personal information with a third party without his consent, it would be reasonable for him to complain to the Information Commissioner. The Information Commissioner is better placed to deal with the matter and to decide if the Council’s reasons for declining to share information with Mr X were appropriate. They can also decide if the Council has breached the general data protection regulations by sharing Mr X’s details with a third party.
10. It is not clear from the information provided by Mr X whether he has submitted a claim to the Council’s claims handlers but if he believes he is entitled to compensation this is the process he must follow. If the claims handler refuses Mr X’s claim and Mr X believes it is wrong to do so, it would be reasonable for him to take the matter to court. Only the courts can decide whether the Council fulfilled its duties to maintain the public highway and whether it is liable for the damage to Mr X’s car and for his injuries.

11. Mr X is also concerned about the Council’s handling of his complaints and about its misleading statements regarding his claim. But 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, the Ombudsman does not investigate the Council’s handling of the issue in isolation.

Back to top

Final decision

12. The Ombudsman will not investigate this complaint. This is because it would be reasonable for Mr X to take the matter to the Information Commissioner and to court.

Back to top

Investigator's decision on behalf of the Ombudsman