Decision : Closed after initial enquiries
Decision date : 22 Nov 2018
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate this complaint. This is because the complaint is late without good reason and Ms Y can apply for clarification and amendment of the right of way which, if rejected, can be better considered by the Secretary of State.
- Ms Y complains the Council instigated and then has delayed making a definitive map modification order (DMMO) on the definitive map, confirming a public right of way over her property.
The Ombudsman’s role and powers
- 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)
- The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
- 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- the injustice is not significant enough to justify our involvement, or
- there is another body better placed to consider this complaint, or
- it would be reasonable for the person to ask for a council review or appeal.
(Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I reviewed the details of the complaint provided by Ms Y. I invited Ms Y to comment on a draft before reaching a final decision.
What I found
- A definitive map is a legal record of the public’s rights of way, including for bridle ways and footpaths. A DMMO concerns whether rights already exist, not whether they should be created or removed. Orders are made, including to amend the map, under section 53 of the Wildlife and Countryside Act 1981.
- Ms Y says she became aware of a potential DMMO for a bridleway which crosses her garden in autumn 2014. Although Ms Y says the issue is ongoing as the Council have not at this stage made a DMMO, but is worried it may do in the future, as she became aware of the issue more than 12 months ago the complaint is late. We cannot investigate late complaints unless we decide there are good reasons.
- From the information provided there is not enough evidence to show Ms Y had good reason to delay bringing her complaint to the Ombudsman.
- Under section 53(c)(iii) of the Wildlife and Countryside Act 1981 a DMMO can delete or amend a way in the definitive map. If Ms Y wants the right of way clarified or disputes the right of way, she can make an application for a DMMO. If the application is rejected, or the Council fails to deal with it in 12 months, the Secretary of State can decide whether an order should be made, and is better placed to decide if the definitive map should be changed to include or not include a right of way over her property. So it would be reasonable to expect Ms Y to apply to the Council then to the Secretary of State to address the matter in her complaint.
- Ms Y has raised issues with the Council’s complaint handling not being independent of the team involved. As the substantive issue is late and can be dealt with under an application for a DMMO and ultimately considered by the Secretary of State, it is not a suitable use of public money to continue an investigation into the complaint handling.
The Ombudsman will not investigate this complaint. This is because the complaint is late without good reason and Ms Y can apply for clarification and amendment of the right of way which, if rejected, can be better considered by the Secretary of State.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman