Summary: We will not investigate this complaint about the Council’s failure to take actions over an obstructed footpath. There is insufficient evidence of fault which would warrant an investigation.

The complaint

1. Mr X complained about the Council’s refusal to take enforcement action to remove obstructions from a footpath. He says the path has been used for many years by local people and that the Council should act under its duty to ensure rights of way are kept open. He says the Council’s advice to apply for a modification order is incorrect.

Back to top

The Ombudsman’s role and powers

2. 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
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome,

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

Back to top

How I considered this complaint

3. I considered the information provided by the complainant and the Council’s response.
4. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

5. Mr X says a local path which has been used for many years was obstructed by the landowner. Residents contacted the owner but the obstructions remained. Mr X complained to the Council about the obstruction. Council officers met with residents and investigated the site. It concluded in October 2023 that the path was not recorded on the Definitive Map and Statement of public rights of way which it holds.
6. The Council advised Mr X to make an application to have the record changed). The Definitive map and Statement(DMS) can be changed for a number of reasons, provided that sufficient evidence exists, but only by following a statutory process. As the statutory process requires an order to be made, any applications to change the DMS are known as definitive map modification order (DMMO) applications.
7. Mr X believes that the evidence provided by the residents is sufficient for the Council to use its powers under the Highways Act 1980 to clear the obstruction and that it has a duty to do so.
8. The Council’s advice to Mr X was correct and it is reasonable for him to pursue the appropriate legal process if he believes there is sufficient evidence to claim the route is a right of way.

Back to top

Final decision

9. We will not investigate this complaint about the Council’s failure to take actions over an obstructed footpath. There is insufficient evidence of fault which would warrant an investigation.

Back to top

Investigator's decision on behalf of the Ombudsman