Summary: Mr X complains the Council failed to ensure the safety of a footpath close to his home. The Ombudsman will not investigate this complaint. This is because we are unlikely to find fault in the Council’s actions. And, as the fence is now repaired and not at risk of falling, there is little more we can achieve for Mr X.

The complaint

1. Mr X complains the Council is failing to ensure the safety of a public footpath close to his home. And this is especially important as most of the residents in his road have physical disabilities.

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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
• the fault has not caused injustice to the person who complained
• it is unlikely further investigation will lead to a different outcome

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

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How I considered this complaint

3. I considered the information provided by Mr X and the Council.

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What I found

4. Mr X says the Council is failing to make the footpath safe. He told the Council that a panel from the fence of a nearby house had fallen on the footpath. And that further panels were loose and were at risk of falling.
5. The Council visited the site and asked the resident to move the fence panel from the footpath. Officers returned a couple of days later and noted the panel was no longer on the footpath.
6. Mr X continued to complain. He understands the Council is not responsible for the fence but says it has a duty to ensure the footpath is free from obstructions. He also says the Council discriminated against him and other residents in his road because several of them have disabilities, and some are wheelchair users.

Assessment

7. Mr X says the Council failed in its duty of care to ensure the footpath was free from dangerous obstructions. The Council visited the site and asked for the fallen fence panel to be moved. It revisited to ensure this had been done.
8. I asked the Council if it had considered whether the remaining loose fence panels posed a danger to the public. It advised its Officers attended the site and determined the fence was not causing an obstruction to the highway under section 149 of the Highways Act (1980).
9. Mr X has confirmed the fence has now been repaired, but is not satisfied as he told the Council it was dangerous in March and it was not fixed until July.

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Final decision

10. I will not investigate this complaint. This is because it is unlikely we will find fault in the Council’s actions. It investigated Mr X’s report of an obstruction on the footpath. It checked to ensure the fallen panel had been removed and was satisfied there was no remaining obstruction. It liaised with the housing association which owns the fence.
11. Also, Mr X confirms the fence is now repaired, although after a 3-month delay. He has not reported suffering any accidents because of the loose fence panels. Therefore, I do not consider he has suffered any significant personal injustice from this. And as the fence is now repaired there is little the Ombudsman could achieve from carrying out an investigation.

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Investigator's decision on behalf of the Ombudsman