Summary: We will not investigate this complaint about the Council’s failure to properly maintain a private walkway at the back of her property. This is because the issue does not cause Mrs X significant injustice and any dispute over whether it has fulfilled its obligations regarding her rights of access are is more appropriate for consideration by the courts.

The complaint

1. Mrs X complains the Council’s work to clear a walkway which runs behind her house has left the ground in a poor state. She says the walkway is impassible in places and although the Council has sewn grass seed it has not taken in places.
2. Mrs X says she has a right of access to her garden along the walkway and that it provides a means of access/escape in an emergency, however it is unsuitable for use in its current state.

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The Ombudsman’s role and powers

3. We 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. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

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

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How I considered this complaint

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

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My assessment

6. The walkway does not appear to be part of the public highway and the Council does not therefore have a public law duty to maintain it in the same way it would with public roads and footways.
7. Mrs X’s claim that she has a right of access over the walkway suggests she benefits from rights or easements under her property deeds and if she believes the Council has failed to meet these obligations she may wish to take the matter to court. We cannot interpret or enforce such rights and we will not investigate Mrs X’s complaint because the matter does not cause her significant injustice.
8. Mrs X says the walkway has been obstructed for many years and now the Council has cleared it, she confirms she has used the walkway to enter and exit her garden. She is concerned about the state of the walkway and wants the Council to put down a proper path but its decision not to do so puts Mrs X in no worse position than she was before. Her concerns relate primarily to the possibility she may trip and injure herself, or that her husband would struggle to walk along the walkway in an emergency. But this is entirely speculative and any injuries resulting from use of the walkway would be a matter for the courts. Mr and Mrs X have a means of access through the front of their property and there is no clearly foreseeable reason why they would not be able to use this.

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Final decision

9. We will not investigate this complaint. This is because the Council’s actions have not caused Mrs X significant injustice and any dispute over whether the Council has fulfilled its obligations under Mrs X’s deeds is more appropriately a matter for the courts.

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Investigator's decision on behalf of the Ombudsman