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Wiltshire Council (18 008 737)

Category : Transport and highways > Rights of way

Decision : Closed after initial enquiries

Decision date : 27 Nov 2018

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate Mrs X’s complaint about the Council’s handling of a right of way matter and its investigation into the alleged conduct of a parish councillor. The complaint is outside his jurisdiction because Mrs X had an alternative remedy available.

The complaint

  1. The complainant, Mrs X, says the Council failed to act to remove an obstruction and re-open a public footpath. She says the Council’s inaction allowed her neighbour, a parish councillor, to apply to move the footpath onto her land leading to harassment, property damage and hate-mail. Mrs X also complains about the outcome of the Council’s investigation into her standards complaint about her neighbour.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I reviewed Mrs X’s complaint and discussed the case with her. I sent a draft decision statement to Mrs X and the Council and considered the comments of both parties on it.

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What I found

  1. Mrs X’s neighbour, Mrs Y, bought her property in the 1980s. In 2005, she bought a further section of land with a public footpath running through it. Mrs X says Mrs Y obstructed the footpath at that time and that the footpath remained obstructed until 2015. Mrs X informed the Council about the obstruction but says it did not take any action to remove it and reopen the footpath.
  2. The Council confirmed to Mrs X in 2016 that Mrs Y had unlawfully obstructed the footpath and told her it would reopen it. Mrs X served notice on the Council to remove the obstruction but Mrs Y subsequently applied to move the footpath onto Mrs X’s land. Mrs X continued to complain to the Council about the obstruction through 2016 and 2017.
  3. Mrs X also made a separate Code of Conduct complaint that Mrs Y, as a Parish Councillor, breached the Parish Council’s code of conduct. Wiltshire Council conducts standards complaints involving a breach of Members’ Code of Conduct for the Parish Council. At its assessment stage, it decided not to proceed with a standards investigation because Mrs X’s allegations could not amount to a breach of the Parish Council’s Code of Conduct. This is because Mrs Y was acting in a private capacity.
  4. Mrs X is also concerned other parish councillors were not truthful about the facts of the case and their knowledge of the footpath when they attended a meeting. She is concerned about the integrity of councillors and the erosion of public trust if the councillors are not held to account.
  5. Mrs X said the Council agreed to divert the footpath but it remained on Mrs Y’s land and is still not freely open to walk. The Council now says the right of way has been diverted and no right of way exists over Mrs X’s land or that of Mrs Y.
  6. The Highways Act 1980 places a duty on the Council as the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway (including established footpaths) in their area. Section 130B of the Highways Act 1980 allows the court to make an order requiring the highway authority to act within a reasonable period of time to remove the obstruction. If Mrs X, or any other member of the public, was concerned about the Council’s failure to remove the obstruction from the footpath it was for them to serve notice on the Council under section 130B and take the matter to court.
  7. Mrs X served notice on the Council to remove the obstruction in 2016 but when it failed to remove the obstruction it would have been reasonable for her to take the matter to the magistrates’ court. I do not propose to investigate Mrs X’s complaint about the Council’s failure to remove the obstruction because Mrs X had a statutory remedy available. Having exercised the remedy partially, I am satisfied it was reasonable for her to have completed the section 130B process.
  8. The Ombudsman can investigate the way the Council conducted its standards investigation into the alleged conduct of Mrs Y. Allied to the complaint about the conduct of Mrs Y is an allegation the Council withheld information from the Parish Council and the public at the behest of Mrs Y. In Mrs X’s own words:

“Wiltshire Council has so far avoided any in depth and proper investigation so as not to implicate itself in the substandard procedures, unacceptable practices and all-round poor service conspicuous in its dealings with us, [Mrs X, and other members of the Parish Council].

The Ombudsman must complete a proper investigation so that the appropriate satisfactory outcome can be met: an apology and assurances from Wiltshire Council that the same will not be repeated.

Wiltshire Council’s failure to provide information in the manner outlined in its information governance policy combined with its failure to conduct a proper investigation into the parish councillors’ failure to comply with their code of conduct led to us suffering personal financial loss, intolerable stress, harassment, intimidation, bullying and continues to perpetuate an ongoing erosion of public trust.

Wiltshire Council has aligned itself with conduct which falls well below its own standards stipulated in its own policies.

To fail to provide accurate, relevant and timely information at the behest of a parish councillor whose actions one of her own fellow parish councillors has described as dishonest is indefensible.

This matter is separable from the question of whether a parish councillor’s obstruction of a public right of way on her land is connected to her public role. As we have stated, we believe that if a parish councillor knowingly obstructs a public right of way on which she is effectively working in her public capacity and is not open, transparent and honest about her actions whilst in her public role then she has breached her code of conduct.”

  1. Ms X says the Council failed to ensure action was taken over the Parish Council’s poor record keeping. Mrs X says the Ombudsman has a duty to investigate to prevent public money from being misspent on unnecessary and ineffective applications on behalf of parish councillors.
  2. To investigate Mrs X’s concerns the Ombudsman must be satisfied these concerns are separable from the matter which is outside jurisdiction. Where a person has a right of appeal on a matter the courts have held that the bar to the Ombudsman’s investigation is not lifted even if the appeal does not provide a complete remedy for all the person’s grievance. To lift the bar the grievance must be separable from the subject matter of the appeal.
  3. I do not find Mrs X’s concerns about information provided by the Council to her, the Parish Council or the public is separable from her dissatisfaction with the actions of Mrs Y on the footpath. Mrs X’s concerns about substandard procedures, unacceptable practices and poor service are not separable from the core issue of the footpath for which there was a statutory remedy. The Council is not a supervisory body over the Parish Council and so cannot ensure optimal record keeping by the Parish Council.
  4. I do not find Mrs X’s complaint about the conduct of Mrs Y as a parish councillor is separable from her dissatisfaction with the actions of Mrs Y on the footpath. I consider that part of the complaint involving the conduct of Mrs Y as a parish councillor is caught by the legal restriction on alternative remedies.
  5. In any case, an investigation by this service into the Council’s standards investigation holds no public value. The Council decided Mrs Y acted in a private capacity and so did not hold a standards investigation.
  6. Mrs X considers the Council’s position amounts to avoidance of a proper investigation. I do not share her view. The Council’s decision was in line with its arrangements for dealing with Code of Conduct complaints. Its procedure sets out the assessment criteria to be used by the monitoring officer. It does not investigate all standards complaints it receives. Rather there is a ‘sifting stage’ where it decides whether the allegation meets the tests for a standards investigation. In this case, it ruled out an investigation at the sifting stage. I do not find this amounted to avoidance of a proper investigation.
  7. A Code of Conduct complaint about the conduct of the other parish councillors is not caught by the legal restriction. It would be separable. However, it does not appear Mrs X made a code of conduct complaint about those councillors. Instead, Mrs X complained to the Council about the actions of those councillors in making her general complaints to the Council but made a code of conduct complaint about Mrs Y.

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Final decision

  1. I have closed this complaint because it is outside the Ombudsman’s jurisdiction. Mrs X had an alternative remedy available to her and it is reasonable for Mrs X to have used the alternative remedy.

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Investigator's decision on behalf of the Ombudsman

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