Summary: The Ombudsman cannot investigate Mr X’s complaint about the Council’s handling of a footpath diversion application. This is because the Council has decided to continue with an Order to divert the footpath. This will allow a right of appeal to the Planning Inspectorate. The Ombudsman has no jurisdiction to consider the complaint.

The complaint

1. Mr X complains a Council officer has shown either bias or maladministration through negligence in the way in he handled a footpath diversion application. He says there were flaws in a report the officer put to the Council’s planning committee recommending an Order to divert a footpath.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes limits on what we can investigate.
3. 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))
4. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
5. The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))

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How I considered this complaint

6. I have considered the information put in by Mr X with his complaint.
7. Mr X had an opportunity to comment on my draft decision.

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What I found

8. Mr X complained to the Council about an officer’s handling of a footpath diversion application.
9. The Council considered his complaint at stage one of its procedure and did not uphold it.
10. Mr X asked the Council to consider his complaint at stage two of its procedure. He wanted the Council to cancel the diversion Order or refer it to a Public Inquiry.
11. The Council told Mr X the planning committee had taken the decision to advertise an Order for diverting the footpath. It said when the Council advertised the Order the public could comment on it and object to it if they wanted.
12. The Council told Mr X if it received an objection to the Order the decision would automatically be referred to the Planning Inspectorate, if it chose not to cancel it. Because Mr X now had a right of appeal against the Order, which might result in it not being made, the Council said it could not deal with his complaint.
13. Mr X complained to the Ombudsman. He accepted he could object against the Order at the Inquiry and said he would do so. However, he was concerned the planning inspector would only assess the merits of the case, rather than the behaviour of the case officer and others involved in the matter.

Analysis

14. We cannot investigate the substantive matter. If Mr X and the objectors are successful at the Planning Inspectorate in their challenge to the footpath Order it will not be confirmed. This is the result Mr X says he wanted.
15. We investigate claims of maladministration against councils as corporate bodies. Where we find maladministration, we hold councils responsible for it, not individual officers.
16. Mr X’s suggestion the Council should investigate the officer’s ‘probity’ is not something we could require of the Council, even if we were to investigate. We could not look at Mr X’s complaint about the officer’s behaviour in this context because we cannot involve ourselves in personnel matters.

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Final decision

17. The Ombudsman cannot investigate this complaint. Mr X has a right of appeal to the Planning Inspectorate and there are no reasons he should not use it.

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Investigator's decision on behalf of the Ombudsman