Summary: The Ombudsman will not investigate how the Council has responded to the complainant’s concerns about a footpath near his home. It is unlikely he would find fault by the Council and the complainant can seek a remedy in court regarding the condition of the footpath.

The complaint

1. The complainant, who I refer to here as Mr B, has complained about the condition of a footpath near his home. Mr B also says a councillor did not respond promptly when he raised the issue of the footpath with him.

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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. 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)
4. 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’.
5. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe:

• it is unlikely we would find fault;
• the fault has not caused injustice to the person who complained; or
• the injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)

6. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached that is likely to have affected the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

7. I have considered what Mr B said in his complaint. The Council also provided some background information.

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What I found

8. Mr B wrote to his local councillor, Councillor X, in September 2018. He complained a footpath near his home was not fully accessible because of vegetation growing at the sides. Mr B has a disability and cannot walk far without someone beside him. It is evident Councillor X informed Mr B in November 2018 he had passed the matter to Councillor Y, who was the Cabinet Member for Infrastructure
9. Mr B did not receive a reply from Councillor X so wrote again in December 2018. His email was passed to Councillor Y who replied to Mr B four days later. He said the Council was not responsible for the vegetation at the edges of the path but it would organise some clearance works.
10. Mr B complained to us in January 2019. He said he had emailed Councillor X four times but had no reply.
11. We referred the matter to the Council because it had not had a reasonable opportunity to consider it. The Council then carried out some work to the vegetation which Mr B says improved matters. However, the Council was clear that it does not consider it is responsible for the full width of the path; it says it only acted to help the passage of users. Whoever owns the land at the side of the path is responsible for cutting back the vegetation.
12. Mr B complained to us again in June 2019. He had complained to the Council’s Monitoring Officer about Councillor X not replying to him but the Council declined to investigate this as a breach of the Councillor Code of Conduct.

Analysis

The footpath

13. I consider the Council has responded reasonably to Mr B’s concerns about the condition of the footpath. It has explained it is not responsible for the full width and I do not consider we can criticise it for only ensuring the footpath is useable, even if this is not to the extent Mr B would like.
14. Further, Section 56 of the Highways Act 1980 says a person may serve a notice on a highway authority requiring it to confirm that a road is a highway that it is liable to maintain. If the highway authority disputes this or does not respond within one month, the person may apply to a crown court. The court will then determine if the highway authority is liable for the maintenance, and if so, order the authority to put the road in proper repair within a reasonable period. If liability is not in contention, the person can apply to a magistrates’ court.
15. If Mr B considers the Council is responsible for the footpath and is not keeping it in repair, he has the right to take his complaint to court. It would be for the court to decide the extent of work (if any) to be carried out and set a timescale for the work.
16. I consider it would be reasonable for Mr B to serve a notice on the Council and take his complaint to court if necessary. This is because the court has powers to instruct the Council to carry out the work. We have no such powers. This would also clarify the issue of responsibility for maintaining the footpath.

The Councillor’s failure to respond to Mr B

17. It was for the Council to decide whether to pursue a complaint about Councillor X. Our role is to look at how the Council made that decision; we do not provide an appeal against the Council’s decision.
18. The Council properly considered Mr B’s complaint about Councillor X and we will not pursue this further.

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Final decision

19. I have decided we will not investigate this complaint. This is because we are unlikely to find fault by the Council and Mr B can seek a remedy in court regarding the condition of the footpath.

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Investigator's decision on behalf of the Ombudsman