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Essex County Council (19 018 541)

Category : Transport and highways > Rights of way

Decision : Closed after initial enquiries

Decision date : 17 Mar 2020

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate Mr X’s complaint that the Council has not maintained a public footpath. This is because it is reasonable to expect Mr X to use his right of remedy in the courts.

The complaint

  1. Mr X complains the Council has not maintained a public footpath to a suitable standard.

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The Ombudsman’s role and powers

  1. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

  1. I have considered Mr X’s complaint to the Ombudsman and the information he provided. I have written to Mr X with my draft decision and considered his response.

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What I found

  1. Under Section 41 of the Highways Act 1980 the local highway authority, in this case the Council, is responsible for management and maintenance of the rights of way network.
  2. Maintenance should be such that the rights of way footpath can meet the use expected of it by ordinary traffic and should be in keeping with the surrounding area.
  3. In response to Mr X’s complaint, in November 2019 the Council Public Rights of Way Inspector attended the footpath. The inspector determined that the path was within specification for a footpath.
  4. Whether the Council has met its duty under Section 41 of the Highways Act 1980 requires interpretations of the law. This is not a matter for the Ombudsman.
  5. If Mr X believes the Council has failed in its duty to maintain the Highway, he may serve notice on the Council to carry out repairs. Should it fail to do so, Mr X may then apply to the magistrates’ court for an order under section 56 of the Highways Act 1980 requiring it to take action. The Council would be bound by any order made by the magistrates’ court and it is therefore reasonable to expect Mr X to use the alternative remedy available to him.

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Final decision

  1. My decision is that the Ombudsman will not investigate Mr X’s complaint that the Council has not maintained a public footpath. This is because it is reasonable to expect Mr X to use his right of remedy in the courts.

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Investigator's decision on behalf of the Ombudsman

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