Summary: Mrs X complains the Council has not communicated adequately with her or her solicitor about a dispute involving a gate, which she installed on a road adjacent to her property in December 2016 after receiving a licence from it to do so. She wants it to communicate with her solicitor to resolve the matter. The Ombudsman has discontinued its investigation into her complaint. This is because we cannot achieve the outcome she desires and there is another body better placed to consider her complaint.

The complaint

1. The complainant, who I shall refer to as Mrs X, complains the Council has not communicated adequately with her or her solicitor about a dispute involving a gate, which she installed on a road adjacent to her property in December 2016 after receiving a licence from it to do so. She wants it to communicate with her solicitor to resolve the matter.

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The Ombudsman’s role and powers

2. 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 we cannot achieve the outcome someone wants, or there is another body better placed to consider the complaint. (Local Government Act 1974, section 24A(6), as amended)
3. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

4. I have:
• Read Mrs X’s complaint and the documents her solicitor submitted in support of it.
• Considered the Council’s comments about the complaint and the supporting documents it provided.
• Provided both parties with an opportunity to comment on the draft decision and considered the comments that were made.

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What I found

5. Mrs X’s land is crossed by a track which is a public right of way open to all traffic. This includes motorised vehicles. Mrs X had concerns about walkers and horse riders being at risk from those using motorised transport on the track. In December 2016, the Council granted Mrs X a licence to install a gate across the track.
6. The Council subsequently determined the licence was invalid and that its officers did not have the appropriate authority to issue one. It sought a retrospective variation of the right of way under Section 116 of the Highways Act 1980 to remove the vehicular access rights. But the court rejected this application.
7. In July 2018, the Council informed Mrs X that due to the court’s decision, the licence was not valid and she would need to remove the gates as it had received a complaint about them. The Council apologised and offered to refund Mrs X the £1,500 licence fee, the signage fee of £70, and ‘the cost of the gates installed’. It explained there were other circumstances to justify gating such tracks, such as to protect livestock or prevent high levels of crime or Anti-Social Behaviour (ASB).
8. Mrs X’s solicitor, Mr Y replied to the Council in August on her behalf and rejected its offer. He said the minimum she would expect is to be reimbursed for her legal fees, as well as all costs and expenses. He argued the licence remained effective until such time the Council served a notice on Mrs X requiring the removal of the gates. He also said the gates could be justified on the grounds of livestock protection and prevention of ASB.
9. Mr Y pursued the Council for a substantive reply throughout September. The Council responded to say it was considering the matter, then met with Mr Y later in the month. He made representations on behalf of Mrs X under Section 147 of the Highways Act 1980, seeking to retain the gates. The Council confirmed it was considering the application.
10. Mr Y pursued the matter throughout October and November. He lodged a complaint with the Council in December.
11. The Council served Mrs X with a Section 143 Notice under the Highways Act 1980 in February 2019. The Notice required Mrs X to remove the fencing and gates ‘causing an obstruction’ along the track within one month. If Mrs X did not remove the obstructions, the Council advised it would do this itself and recover the costs from Mrs X. Mrs X and Mr Y dispute the validity of the Notice and Mrs X has not removed the gates.
12. In March 2019, Mr Y complained to the Ombudsman on behalf of Mrs X. He says Mrs X installed the gates after receiving assurances from the Council that an application for extinguishment of highway rights was “suitable” and that everything had been taken into account. He says the Council has now performed a U-turn claiming it should never have issued the licence. In addition, he states the Council admitted to making false and/or misleading statements, which in turn led directly to her incurring loss and damage. However, he says the payments it has offered Mrs X do not sufficiently remedy the costs she has incurred and will continue to incur because of this matter.
13. He adds the Council has not dealt with the situation in a proactive manner or sought to achieve a resolution with Mrs X through him. He states it is ignoring his telephone calls and correspondence about the matter and has made little effort to reach an amicable solution. Consequently, he says that Mrs X wants the Council to communicate properly and sensibly with him about this matter so it can be resolved.

Analysis

14. I note the Council has accepted it erroneously issued Mrs X with a licence to install the gates in December 2016 and has made an offer to remedy the injustice caused by this fault. Mr Y states Mrs X has rejected this offer and is seeking to recover the legal fees she incurred because of the Council’s actions. However, they complain it is not engaging with Mr Y to resolve the matter and want the Ombudsman to order it to communicate with him. They also want us to take disciplinary action against the Council officers who have dealt with the case.
15. The Ombudsman does not have the power to discipline council officers nor can we compel them to communicate with complainants. What we can do is make recommendations to a council if we find evidence of maladministration or service failure which caused a complainant injustice. Therefore, I have considered whether to investigate the matter at the root of Mrs X’s complaint, namely the dispute about the gates.
16. I see the Council has taken a position on this matter and has offered Mrs X a remedy which it thinks is suitable. She and Mr Y disagree and think the offer should be increased significantly, adding it is likely they will issue legal proceedings against the Council if it does not revise its offer.
17. The Ombudsman cannot award compensation or damages, nor can we recommend that the Council pays Mrs X anything near the figure she is seeking. Consequently, the only way she can achieve the outcome she desires is by pursuing this matter in the courts. Consequently, I have decided to discontinue the Ombudsman’s investigation into this complaint because we cannot achieve the outcome she desires and there is another body better placed to consider her complaint.

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Final decision

18. I have discontinued the Ombudsman’s investigation into this complaint. This is because we cannot achieve the outcome that Mrs X desires and there is another body better placed to consider her complaint.

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Investigator's decision on behalf of the Ombudsman