The Ombudsman's final decision
Summary: The Council is at fault for delaying its response to Mr X’s request to remove a barrier blocking access to his land. The Council has agreed to apologise and pay Mr X for the distress caused by its fault.
The complaint
Mr X complained the Council blocked access to his land and delayed taking action to address the problem. He said although the Council partly dealt with the issue by removing a barrier, there is still a blocked public right of way (PROW) which means people trespass on his land to get through.
The Ombudsman’s role and powers
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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
I have considered Mr X’s complaint and have spoken to him about it.
I have also considered the Council’s response to Mr X and to my enquiries.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
What happened Barrier at access point Mr X bought some land in 2019. Mr X must cross land he believed was owned by the Council to gain vehicle access the land. There was a barrier on this access point and Mr X could not access his land.
Mr X asked the Council to remove the barrier in June 2019. Between August 2019 and February 2021, the Council said its enquiries about land ownership and access were ongoing and left pending due to COVID-19 pandemic.
In February 2021, Mr X complained to the Council about the lack of progress with the barrier removal.
The Council removed the barrier in August 2021. There is some discrepancy between Mr X and the Council as to the exact date, but this is not relevant to my investigation. I have seen a photograph which shows the barrier is no longer present.
Blocked Public Right of Way (PROW) Mr X said the Council has not moved a fence and large stone blocks which block a PROW. He said because of this blockage, people cut across his land to get past. The Council investigated the ownership of the land where the fence and blocks are located. It said it is not Council land and the PROW is not blocked.
Delay in response The Council apologised for the length of time it took the Council respond to Mr X’s request. It said the delay was due to exceptional circumstances (COVID-19 pandemic) and the Council was not at fault.
The Council said it would have been reasonable for the Council to respond within 3 months of Mr X’s request i.e. by September 2019.
The Council looked at the period between October 2019 and the start of the COVID-19 lockdown (March 2020) as constituting an unreasonable delay.
The Council said that it would not include any period after March 2020 because of the impact of the COVID-19 pandemic when no-one would have been able to deal with enquiries during that time.
The Council also would not consider the subsequent resumption of services post COVID-19 when Mr X’s complaint was received in February 2021. The Council said it was dealt with in a reasonable timescale.
The Council offered to pay Mr X £300 (£50 per month for 6 months) to cover the period between October 2019 and March 2020.
My findings
The Council acknowledged the delay in dealing with Mr X’s request was unacceptable. I agree. This amounts to fault. Mr X experienced the injustice of not being able to access his land to carry out works and enjoy it.
The Council’s decision not to include the period post-March 2020 and the period after the pandemic as constituting an unreasonable delay is unreasonable. I recognise the impact the pandemic had on many Council services. However, there were periods of time when officers would have been able to consider enquiries and respond to Mr X. The Council is at fault for failing to include these periods in its calculations.
The Council should offer Mr X an apology for the time it took to respond to his request and the injustice this caused him.
The Ombudsman’s Guidance on Remedies recognises a financial payment for avoidable distress arising from fault by the Council may be appropriate. The guidance suggests that a remedy payment for distress is often a moderate sum of between £100 and £300. This should reflect the individual’s circumstances, the severity of the distress and the length of time involved.
The time period between Mr X’s request and the Council taking action to remove the barrier was over 2 years. However, the severity of Mr X’s distress is not significant. Therefore, the Council’s offer of £300 is reasonable. This amount is not based on £50 a month suggested by the Council but rather an overall remedy payment in line with our Guidance on Remedies.
The Council is not at fault for not removing the fence or stone blocks. The PROW is not blocked.
Agreed Action
Within 4 weeks of my final decision, the Council has agreed to: Apologise to Mr X for the avoidable distress caused by the Council’s delay; Pay Mr X £300 to remedy the injustice caused by the Council’s fault.
Final decision
I have completed my investigation. The Council is at fault for taking over 2 years to deal with Mr X’s request.
Investigator's decision on behalf of the Ombudsman