Summary: We will not investigate this complaint the Council is not maintaining vehicle access to the complainant’s home. It is unlikely we would find evidence of fault by the Council and the complainant can seek a remedy in court.

The complaint

1. The complainant, who I refer to here as Ms B, has complained the Council is not maintaining a Byway Open to All Traffic (BOAT) that provides access to her home and two others. She wants the Council to make the BOAT passable and to continue to maintain it.

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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.
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. (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 Ms B said in her complaint and discussed it with her. The Council also provided background information which included its response to Ms B’s complaint.

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What I found

Legal Background

8. Section 66(1) of the Wildlife and Countryside Act 1981 defines a BOAT as: “a highway over which the public have a right of way for vehicular and all other kinds of traffic, but which is used by the public mainly for the purpose for which footpaths and bridleways are so used”.
9. 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.

Analysis

10. Ms B has raised concerns with the Council about the condition of the BOAT. The Council says it has carried out repairs it considered were necessary. It has explained it needs to prioritise the use of its resources according to a Highway Maintenance Plan and has done so in this case.
11. The Council says it is not obliged to maintain the BOAT to provide private access for all types of vehicles; only to ensure it is open for public usage.
12. I consider it is for the Council to decide how to allocate its resources and there is no evidence of fault in how it has done this.
13. If Ms B considers the Council is not keeping the BOAT in repair, she has the right to take her complaint to court. It would be for the court to decide the extent of the repairs (if any) to be carried out and set a timescale for the work.
14. I consider it would be reasonable for Ms B to serve a notice on the Council and take her 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.

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Final decision

15. I have decided we not investigate this complaint for the reasons set out in paragraphs 12 and 14.

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Investigator's decision on behalf of the Ombudsman