Decision : Closed after initial enquiries
Decision date : 20 Nov 2019
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Mr B’s complaint that the Council failed to replace no cycling signs on a footpath. This is because there is insufficient evidence of fault in the way the Council has reached its judgement on the matter.
- The complainant, whom I shall call Mr B, complained that the Council failed to replace no cycling signs on a footpath he and other local residents were using frequently. Mr B told us the footpath has, in effect, become a cycle path and many pedestrians no longer use it because they find it too dangerous and intimidating.
The Ombudsman’s role and powers
- 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:
- it is unlikely we would find fault, or
- it is unlikely further investigation will lead to a different outcome, or
- we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
- I have considered the information Mr B provided and his comments on my draft decision.
What I found
- Mr B says the Council has failed in its duty of care to the public and in its management responsibilities for the footpath. He told us three of the four footpath no cycling signs disappeared in 2015. Up to that point he says the signs had been effective in deterring cyclists. Mr B told us he took up the matter with the Council after he was injured avoiding being hit by a racing cyclist. Mr B says he made no progress but he moved away from the area and then the path was closed for a period. He told us the problem started again as soon as the path re-opened in 2019. Mr B says it cannot be right that pedestrians feel they have to abandon a footpath because it has become unusable.
- There is no right for cyclists to cycle on the footpath. The Council told Mr B he could make a request for a Traffic Regulation Order to prohibit cycling on the footpath but that would need enforcement by the police. The Council said the type of sign Mr B had requested could not be put up at the footpath because it was a public highway footpath. It said it had considered putting in kissing gates or anti cycling barriers, but this would exclude users of mobility scooters. When responding to Mr B’s complaint the Council said safety, where there are already accidents occurring, is a key criterion. The Council told Mr B, because of the lack of incidents recorded in the police’s injury accident database, a change to the highway infrastructure on the path was unlikely to be a priority.
- Mr B says, since the absence of signs is being used by cyclists as justification for breaking the law and putting the public at risk of injury, the Council is in effect encouraging the law to be broken. He told us he would have thought there would be some regulation requiring highway authorities to have some regard for maintaining footpaths to a standard that is consistent and compatible with maintaining public safety.
- The existence of a duty of care and the question of whether a body has failed to comply with it are legal matters which a court of law is the appropriate body to rule on. Our role is to consider whether there is evidence of fault in the way the Council has reached its decision. The Council has a duty to erect and maintain a signpost where a footpath leaves a metalled road. It can erect signs elsewhere along any public highway footpath, but this is a discretionary power rather than a duty. It is not fault for the Council to prioritise its resources even if requested improvements would only have a minimal cost. While Mr B has clearly described the problems which have caused him and others to avoid using the path, the Council has considered the matter and the police’s injury accident database. It has not to date identified a suitable solution which it considers would be now be effective. There is insufficient evidence of fault in the way the Council has reached its judgement on the matter. We have no powers to order the Council to erect the signs Mr B has asked for.
- The Ombudsman will not investigate this complaint. This is because there is insufficient evidence of fault in the way the Council has reached its judgement on the matter.
Investigator's decision on behalf of the Ombudsman