Summary: We will not investigate this complaint that the Council has failed to act on reports that a tree is obstructing a public footpath. There is insufficient evidence of fault in the way the Council has responded to the concerns raised more recently, and it is reasonable to expect the complainant to use the alternative court remedy.

The complaint

1. Mrs X complains the Council has failed to take action in response to reports of a tree overhanging/obstructing a gateway which leads on to a public footpath.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. The law also 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)
5. Finally, we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

6. I considered information provided by Mrs X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. The time restriction detailed in paragraph 5 above appears to apply to some of the complaint. This is because I understand Mrs X has been contacting the Council about the tree since 2018, yet she did not contact the Ombudsman until September 2025. As such, any parts of the complaint about matters which arose prior to mid-2024 are late, and I see no reasons to exercise discretion to consider them now.
9. With regard to Mrs X’s more recent reports, I consider there is insufficient evidence of fault in the way the Council has responded to her concerns. It has explained the gate and fence parallel to the path, are on private land and not owned by the Council. It says the gate access does not form part of the public right of way, and the Council is satisfied the condition of the gate is not a danger to users of the public footpath. It is not the Ombudsman’s role to adjudicate in boundary/ownership disputes.
10. The Council has also inspected the tree, most recently in late‑2025. Low hanging branches were cut away, and it was satisfied the tree was not affecting use of the path. This is a professional judgement the Council was entitled to reach, even if Mrs X disagrees with it.
11. Furthermore, section 130 of the Highways Act gives Mrs X the right to serve a notice on the Council requiring it to clear the alleged obstruction. If it fails to do so, the complainant can then ask the magistrates’ court to order the Council to take action. Therefore, Mrs X has the right to take court action if she feels the Council has failed in its duty to remove an obstruction on a public right of way.
12. There might be some cost to pursuing a court remedy. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Mrs X to be expected to use her right to go to court about this matter so we will not investigate.

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Final decision

13. We will not investigate Mrs X’s complaint primarily because there is insufficient evidence of fault in the way the Council has responded to her concerns, and it is reasonable to expect her to use the alternative court remedy.

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Investigator's decision on behalf of the Ombudsman