Summary: We will not investigate Mr X’s complaint about the Council’s and its insurer’s refusal of legal 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. It is reasonable for Mr X to refer the issue of the Council’s response to his Freedom of Information request to the Information Commissioner.

The complaint

1. Mr X’s car was damaged after hitting a pothole. He complained the Council:
1. has been negligent in their road repair duties under the Highways Act 1980;
2. incorrectly refused liability for his claim for the pothole damage to his car;
3. failed to provide him with a full report of the relevant road inspections and repairs in its response to his Freedom of Information (FOI) request.
2. Mr X says he has incurred financial loss from his car repairs, and spent time and been caused inconvenience dealing with those repairs, getting information from the Council, and pursuing the matter. Mr X wants the Council to admit its road maintenance was negligent, admit liability for the pothole damage to his car, and pay for the repairs. He also wants the Council to make more detailed and full records of its roadworks and inspections.

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The Ombudsman’s role and powers

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 (ICO) 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 ICO.

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How I considered this complaint

5. I considered information provided by Mr X, and the Ombudsman’s Assessment Code.

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My assessment

6. 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. Such claims are a matter for councils’ insurers and ultimately for the courts. The Council’s insurers have denied liability for the damage, so now only the courts can determine if this Council’s road maintenance scheme was negligent as Mr X claims, if it is legally liable for the damage to his car, and if any other remedies are due. There is also a simple, low-cost legal procedure open to anyone to make this kind of claim in court. For these reasons, it is reasonable for Mr X to take court action to pursue the matter and we will not investigate.
7. 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 a highway. We will not remove the Council’s right to use that defence by investigating Mr X’s complaint.
8. Mr X says the Council failed to provide a full report of the road repairs. The Council says it has given him with all the records it has. The ICO is the appropriate expert body, specifically created by national government to consider complaints about compliance with data law, including organisations’ responses to FOI requests. If Mr X is dissatisfied with the Council’s response to his FOI, it would be reasonable for him to refer that matter to the ICO.
9. A further aspect of this part of the complaint is that Mr X considers the Council should be making and keeping more detailed records of its roadworks and inspections. It is for councils to decide the resources they use on highway work and the records they keep. We cannot dictate to councils how they deploy staff or other resources. In any event, it would be for a court to decide whether the records the Council has made and kept are sufficient to support a denial of legal liability, in this case or any other, where someone has alleged it has neglected its Highways Act repair duties.
10. Mr X says the time he spent and inconvenience he was caused trying to get information and a remedy from the Council was an injustice to him. But it was Mr X’s decision to pursue the matter with the Council after its insurers denied liability, rather than take his claim to court. The correspondence with the Council shows he was aware of his right to go to court. If Mr X believes the Council’s actions in response to his core negligence claim, or any other related matter, caused him inconvenience which requires a further remedy, he could make that claim at court.

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Final decision

11. We will not investigate Mr X’s complaint because:
• it is reasonable for him to use the legal remedy available to him at court regarding his core claim of negligence against the Council; and
• it is reasonable for him to pursue the issue of the Council’s response to his FOI with the ICO.

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Investigator's decision on behalf of the Ombudsman