The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s failure to take action to keep a local footpath free from obstruction. This is because Ms X has appeal rights to the Magistrates Court which we would reasonably expect her to use, so placing the complaint outside our jurisdiction.
The complaint
Ms X complains the Council has failed to carry out its public duty to keep a local footpath free from obstructions and has failed to make those who have obstructed the path remove the obstructions.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)
How I considered this complaint
I considered information provided by the complainant, including the Council’s response to the complaint.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms X complained to the Council about its lack of action to keep free from obstruction a public footpath she would like to use.
The Council responded to explain there were a number of issues involved in resolving the matter, particularly with regard to the Definitive Map which does not clearly record the line of the footpath due to the relative thickness of the line denoting it. However, it confirmed it was its intention to carry out further investigations and to follow up with contact with the landowners concerned and to serve notice on them if necessary. It explained that due to financial restrictions and the demand on its resources, it had to prioritise work and that this issue had a low priority.
The restriction highlighted at paragraph 3 applies to Ms X’s complaint. She has a right to serve a notice on the Council under section 130a of the Highways Act 1980 requiring it to clear the obstruction. If it fails to do so she can ask the Magistrates Court to order it to do so. As we would reasonably expect Ms X to make use of this alternative remedy, the complaint falls outside our jurisdiction and will not be investigated.
Final decision
We will not investigate Ms X’s complaint because she has appeal rights to the Magistrates Court which we would reasonably expect her to use, so placing the complaint outside our jurisdiction.
Investigator's decision on behalf of the Ombudsman