Summary: Mr X complains the Council was at fault in the way it dealt with a footpath modification order he made. Mr X also complains the Council was at fault in the way it deals with these applications and directions from the Secretary of State in general due to a large backlog of undecided applications. We found fault as the Council has delayed in dealing with applications and directions. But this fault did not cause Mr X an injustice. So, we are completing our investigation on this issue. It is reasonable to expect Mr X to appeal against the Council’s decision on his footpath modification application. So, the Ombudsman will not investigate this part of Mr X’s complaint.

The complaint

1. The complainant whom I shall refer to as Mr X complains about the way the Council deals with applications to modify the Definitive Map, and with one application he made for a footpath in the county. In particular Mr X says
• The Council delayed in dealing with his application made in 1999 until 2018 and failed to comply with a direction by the Secretary of State to deal with his application within a named timescale.
• The Countryside Rights of Way Panel (CROW) did not have all the necessary information before them to reach a sound decision on his application and only agreed to add part of the footpath.
• The Council wrongly advised him he could appeal against the decision. Mr X’s appeal was rejected as premature as he can only appeal once the Council makes the Order. Mr X says the Council has failed to progress the Order and say when it will do so he can appeal against the decision.
• The Council has unreasonably delayed dealing with other definitive map modification (DMMO) applications and has a backlog of 240, with some undetermined for 20 years. This reduces the ability to confirm, elaborate or clarify evidence. And it causes disputes and confrontations between users and landowners who often block routes. Mr X says new development can caused obstruction by building over the claimed routes.
• The Council has failed to act to clear the backlog of applications and orders and reduced its budget for the service in 2006. Mr X says in 2017 the Council resolved to commit the limited funds available to only keep open existing paths rather than adding more routes to the existing network. This decision led to more applications to the Secretary of State to direct the Council to determine applications.
• However, the Council has failed to comply with directions from the Secretary of State to decide applications. Mr X says although the Council appointed new officers to deal with the applications in 2018, they lack knowledge to deal with the applications, so the Council is dealing with fewer each year.
• Mr X says the Council cannot indicate when it will deal with the directions. But he believes it will take the Council five years to clear the backlog of applications determined by the Secretary of State. And take a further 13 years to clear the overall backlog of applications, including any new ones.
2. Mr X is a keen walker and volunteer working to maintain footpaths. He says he has been caused time and trouble and inconvenience in pursuing his application (and 38 other applications he has made), the premature appeal and subsequent complaints with the Council about these matters.
3. Mr X says the Council needs to resolve the issue and commit significant funds to implement the directions given by the Secretary of State. Mr X says the Council should also set out a time bound plan showing how it is dealing with the applications and directions and regularly review it. It should also review practices and procedures especially with the CROW panel who only sits six times a year. Mr X says the Council should regularly update applicants and look at other ways of considering applications to speed up the process.

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The Ombudsman’s role and powers

4. 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
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, 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)

5. 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))
6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

7. I have read the papers submitted by Mr X and spoken to him about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

9. Councils must prepare and keep up-to-date ‘definitive maps and statements’ to show public rights of way (PROW) in their area such as footpaths and bridleways.
10. The law sets out how people may apply to their council for a DMMO to have a PROW recorded on the definitive map. This is under section 53 of the Wildlife and Countryside Act 1981 (S 53). Once the council has a properly made DMMO application, it should “as soon as reasonably practicable” decide whether to make an order. A decision to make an order needs evidence a right of way exists or is reasonably alleged to exist.
11. If an applicant waits 12 months and the council does not make a decision, they may ask the Secretary of State to direct the council to decide the application. The Secretary of State’s direction may include a deadline for the council to make its decision. The Government’s current Rights of Way Circular 1/09 (Circular 1/09) says, at paragraph 4.9, when considering whether to make a direction with a deadline, the Secretary of State:

“…will take into account any statement by the [council] setting out its priorities for bringing and keeping the definitive map up to date, the reasonableness of such priorities, any actions already taken by the [council] or expressed intentions of further action on the application in question, the circumstances of the case and any views expressed by the applicant.”

12. If a council decides not to make an order, the applicant can appeal to the Secretary of State within 28 days. On appeal, the Secretary of State will consider the evidence to decide if there is a case for making an order and, if so, direct the council to do so. The Secretary of State’s direction may include a deadline for the council to make the order.
13. If a council makes an order, further legal steps follow, which may include the Secretary of State deciding whether to confirm the order if people have objected to it. A public inquiry may be necessary, and people asked about their use of claimed rights of way where there are inconsistencies in the evidence. (In practice, Planning Inspectors, independent of councils, usually act for the Secretary of State in dealing with DMMO applications, including issuing directions to councils.)
14. Circular 1/09, at paragraph 1.8 says, councils “should ensure that sufficient resources are devoted to meeting their statutory duties with regard to the protection and recording of public rights of way…”

What happened

Mr X’s footpath modification order application

15. Mr X applied under S 53 to add an unrecorded public footpath to the definitive map in December 1999. The Council did not decide the application, so in 2017 Mr X applied to the Secretary of State to ask the Council to determine the application. In April 2018, the Secretary of State directed the Council to decide the application by October 2018. Mr X says the Council failed to do so until February 2019 when the CROW panel considered the application.
16. The CROW considered an officer’s report recommending adding the whole route to the definitive map. The panel agreed to only add part of the route.
17. The Council told Mr X of the decision and advised he could appeal to the Secretary of State as it decided not to make an order for the whole route. Mr X sent an appeal. The Secretary of State rejected the appeal as Mr X cannot do so until the Council makes the Order.
18. Mr X complained to the Council in March 2018 about the way the CROW panel dealt with his application. Mr X asked the Council to reverse its decision. The Council did not respond so Mr X contacted the Leader of the Council. The Council responded in August 2019. It apologised for the delay in responding and wrong information about when he could appeal the decision on his application. The Council considered the CROW panel had all relevant information to enable it to reach a decision on the application.
19. The Council cannot confirm when it will progress the Order on Mr X’s application. This is because it needs to place a copy of the Order and documents on deposit for the public to view. It cannot do so due to the current Covid 19 pandemic as its offices are closed. It is also unable to place notices on site as officers are on other duties. Once restrictions are lifted the Council will progress the Order.

Council’s response to DMMO applications and directions backlog

20. The Council acknowledges it has a backlog of applications and failed to meet deadlines issued by the Secretary of State. It explained the background to provide some context. This being it was producing a new Definitive Map and Statement and reclassification exercise when the Countryside and Wildlife Act 1981 came into force. The Secretary of State allowed the Council to continue working on the new map rather than abandon it to deal with the new legislation. Once the Council produced the new Map and Statement it received objections to some reclassifications it had made. The objections led to many public inquiries into the status of some routes which took until 1986 to be heard and resolved.
21. A further delay was caused by an issue over Roads Used as Public Paths (RUPP) and what their status should be. A court decided the minimum status of a RUPP should be a bridleway. The court ruling was referred to in some of the public inquiries, but the Council could not amend the reclassification of a route to another status in cases heard before the decision.
22. The Council did not start to operate the new Act until 1992 because of the work to the new definitive map and public inquiries. There were already outstanding requests for changes to the Definitive map and statement and in 1998 a backlog of 198 cases. The Council says most of the application backlog is based on historical evidence submitted by user organisations or individuals.
23. The Council says the national average time to deal with an application is about 120 hours and estimates a full-time employee will deal with eight a year. This depends on factors such as appeals, queries and other associated work. In 2009 it disbanded the Rights of Way team because of decreasing funds to focus on priority services such as childcare, education and adult social care. A public question to a Council meeting in 2017 raised concerns on the Council’s responsibility to process DMMO’s and the backlog of 240 cases.
24. The Council published its response to the question. It acknowledged its response in deciding the DMMO application, like most local authorities was slow but reflected the quasi- judicial nature of the procedures. These need extensive investigation, evaluating complex historical evidence and difficult and lengthy negotiations between parties. It referred to the right of way network in Staffordshire (4,500km) and declining resources allocated to processing the applications.
25. The Council confirmed it decided to prioritise investment in services such as adult social care. So, needed to change the rights of way service by focusing its limited resources on keeping open existing routes rather than adding new ones to the network. It said the 240 applications would add only 145 km to the network. The Council acknowledged the backlog and agreed to look at alternate ways to reduce it.
26. The Council found it was not possible to use other ways because case law sets out the mechanism to be followed. This needs all parties consulted, given the opportunity to object, make representations and provide evidence which does not allow a speedy resolution. The Council also looked at making agreements with affected landowners but usually an application is made when a landowner takes action to prevent the use of a footpath. So, landowners were reluctant to enter agreements.

Current situation

27. The Council confirms there have been 150 requests for directions in the last couple of years. It has 94 applications with directions made by the Secretary of State and not yet determined. There are 24 outstanding requests and 32 it has determined. The backlog is 245 applications and it continues to receive applications of which at least 80 are from Mr X. During the time it dealt with the 32 applications it received 29 new ones. In commenting on the draft decision Mr X says he has made 66 applications over the last twenty years.
28. The Council says Mr X’s footpath applications are based on historical documents alleging a highway came into existence some time ago and as a matter of law they still exist. The Council does not consider they are founded on evidence of recent use and often, there are no physical signs a route has ever existed. So, the Council considers Mr X has not been disadvantaged as he has been unable to use a particular way. This is because until he discovered the historical evidence there was no recognition that such ought to be recorded.
29. In commenting on the draft decision Mr X says the applications he has made include ‘lost’ paths and also some applications to link dead end paths that have been recorded by the Council as ending in the middle of a field with no legally recorded link to connect them from one public highway to another. Mr X says some applications are for route in regular use but obstructed by landowners so are now unusable. Mr X also says some of the routes he has applied for are in regular use and some are not.
30. The Council allocated more resources to the Rights of Way service in May 2018 and a priority allocations scheme. This dealt with applications in date order or receipt unless there was a request for priority under its exceptions. These are such as a delay threatening the loss of a right of way, severe hardship and regard to the Council’s sustainable transport polices
31. The Council recruited a further two full time staff in January 2019 and appointed a further three full time officers and one part time officer in 2020. Officers have taken up the posts so there are seven dealing with applications and directions.
32. The Council accepts the newly recruited officers are unfamiliar with the work but found it difficult to recruit officers with experience in rights of way. So, it appointed those with a legal background but no direct knowledge. The officers receive training and guidance and are rapidly gaining experience. The Council hopes to increase the throughput of applications once the new officers gain relevant knowledge.
33. The Council confirms the CROW panel members continue to receive training on rights of way matters with the most recent training taking place in June 2020. The panel has also agreed to meet monthly to help deal with the backlog of cases rather than every two months.
34. A Council committee oversees and scrutinises the CROW panel and applications with the panel also kept updated on the situation. The Council also revisited the way it deals with the applications and adopted a new priority in July 2019. This still deals with applications in date order but the applications with directions are dealt with first.
35. The Council confirms it cannot give definite dates for determining any application. But believes the increase in officers will increase the rate of deciding applications although it can be affected by appeals against decisions or the subsequent Orders.

My assessment

36. The Ombudsman has recently issued a Focus Report, ‘Under Pressure’. The Report recognises councils face budget pressures and that delay caused by service request backlogs is a key theme in many of our investigations. The Report says the presence of delay does not necessarily mean there is fault by a council. Rather, we will consider whether the law requires councils to act in a set time; what steps a council has taken to explain what is happening and to anticipate and respond to increasing pressures. We will also consider the impact of delay on the complainant.
37. The Council accepts it has a backlog of applications and cannot meet the directions set by the Secretary of State. So, I consider there is fault by the Council in failing to meet deadlines set to deal with applications and directions.
38. However, the Council has been taking action in the last few years to deal with the matter and backlog. It has acknowledged the situation, allocated more resources, recruited extra officers to deal with applications, revisited its priority scheme and arranged for the CROW panel to sit more often. So, I am satisfied it is dealing with the concerns raised by Mr X, acting to deal with its backlog of cases and responding to the increased pressure it is under. I do not consider I can achieve anything further for Mr X, especially as the Ombudsman cannot direct a council into how it allocates its resources. I also cannot achieve the outcome Mr X is seeking for the Council to remove its backlog of applications and to deal with the directions in a timely way.
39. In addition, I do not consider Mr X has been caused such a significant injustice by the Council because of the delays in dealing with its backlog to warrant pursuing the matter further. This is because of the time it has taken Mr X to complain to the Ombudsman despite being aware of delays since 1999. This suggests it has not been an issue causing him such significant injustice as he could have come to us sooner. It is also the case the footpaths he has made applications for are not local to him and are largely routes he has been able to walk along previously.
40. With regards to the application Mr X complains about he does have the right to appeal once the Council makes the Order. As paragraph five explains we do not normally investigate a complaint where there is a right of appeal to a government minister. In this case I consider it is reasonable to expect Mr X to use those rights once the Council can progress the Order. This is because a planning inspector acting for the Secretary of State can look at the matter and reach a conclusion based on the facts and evidence. This means I may not look at way the Council dealt with Mr X’s application. Or Mr X’s concerns about documents and information given to the CROW panel when deciding on the application. Mr X can raise these issues as part of his appeal. I appreciate Mr X is having to wait for the Order to be published but I cannot say this is due to any fault by the Council at present. The Council will progress the Order when it can.
41. The Council accepts it gave Mr X wrong information about appealing against its decision in 2019 and delayed in dealing with his complaint. The Council has apologised which I consider is suitable action for it to take. I do not consider there are grounds for me to pursue the matter further and I am unable to achieve anything more for Mr X.

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Final decision

42. I am completing my investigation. The Council is at fault in the way it deals with footpath modification orders and responds to directions form the Secretary of State. But these have not caused a significant injustice to Mr X. Mr X can appeal against the Council’s decision on his footpath modification application so the Ombudsman will not consider this part of his complaint.

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Investigator's decision on behalf of the Ombudsman