The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s refusal to carry out repairs to a public footpath. There is not enough evidence of fault by the Council. If Mr X wishes to challenge the Council’s decision it would be reasonable for him to take the matter to court.
The complaint
Mr X complains the Council has failed to maintain a public footpath to the required standard.
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) (Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X complains the Council refuses to maintain a public footpath "so as to make it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition.”
The Council has a responsibility to ensure the public can use the rights of way network within the area it covers. The main responsibilities are: to maintain the surface of a right of way suitable for its appropriate intended use.
to clear excess vegetation (not including arable crops) from the surface of a route.
the maintenance of bridges intended for use on a public right of way.
to sign any right of way with a non-metalled surface where it leaves the roadside and waymark along the route where necessary.
to enforce the removal of obstructions along rights of way that are found or reported to the team.
It is clear Mr X disagrees with the Council’s decision that the footpath is adequately maintained for pedestrian use. But this is not evidence of fault. If Mr X wishes to challenge the decision he may do so by taking the matter to court.
Section 56 of the Highways Act 1980 allows any member of the public to require the local authority to repair the surface of a public footpath, bridleway, restricted byway, or byway open to all traffic.
This allows Mr X to serve notice on the Council and, if it still refuses to act, he may ask the court to consider the issue. The court can decide whether the Council has fulfilled its obligations and, if it decides it has not, it can order the Council to carry out repairs.
Final decision
We will not investigate Mr X’s complaint because it reasonable to expect him to use the legal remedy available to him under section 56 of the Highways Act 1980.
Investigator's decision on behalf of the Ombudsman