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Nottinghamshire County Council (20 000 236)

Category : Transport and highways > Rights of way

Decision : Upheld

Decision date : 15 Jan 2021

The Ombudsman's final decision:

Summary: Mr B complains the Council did not take action to prevent an Academy School closing a footpath used by parents to access an Infant School. We uphold the complaint finding the Council did not properly consider the impact of the closure on users of the path when it decided not to take legal action against the Academy. We also its reply to Mr B’s complaint was misleading. These faults caused Mr B injustice. Because it is uncertain if the Council would have taken the same approach but for its fault and he was put to unnecessary time and trouble in this matter. The Council accepts these findings and at the end of this statement we set out action it has agreed to remedy this injustice.

The complaint

  1. I have called the complainant ‘Mr B’. His complaint concerns the decision taken by an Academy School to change the times when it locked gates which allowed access to a path running across its grounds on land formerly owned by the Council. He complains the Council is at fault for not taking action to prevent this. Mr B believes the Council had the power to do so as it transferred the land to the Academy’s predecessor (a Foundation School). The deed of transfer required the path remain accessible at “all reasonable times” to allow parents and pupils access to a neighbouring Infant and Nursery School.
  2. Mr B says as a result he has experienced inconvenience in having to use a longer walking route to accompany a child to the Infant and Nursery School. He also considers the Council’s actions disadvantage other users of the path, including potentially those with disabilities or who use pushchairs.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  3. 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

  1. Before issuing this decision statement I considered:
  • Mr B’s written complaint to the Ombudsman and any supporting information he provided. I also spoke to Mr B by telephone to clarify my understanding of his complaint.
  • Correspondence exchanged between Mr B and the Council about the subject of his complaint, which pre-dated my investigation.
  • Information provided by the Council in reply to our enquiries. This included legal advice it sought about the issue at the crux of this complaint.
  • Comments made by Mr B and the Council in response to a draft decision statement where I set out my provisional thinking about the complaint.

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What I found

Key facts

  1. Mr B accompanies a child to a local Infant and Nursery School. This forms one half of a Primary School located on a split site, with the Junior School forming the other half. Between the two sites are the grounds of what is now an Academy (previously a Foundation School). Across those grounds runs a footpath used by parents and pupils moving between the two sites. There are gates at either end of the footpath where it crosses the Academy grounds (and another gate allowing access from another location). When locked, the walking route between the two primary school sites involves a significant diversion using local roads.
  2. Until February 2019 the gates on the footpath were kept open until Infant School hours began. Further the footpath had temporary fencing running alongside it, meaning that pedestrians using it could not access the Academy across its grounds.
  3. In February 2019 that temporary fencing came down. The Academy took the decision to lock the gates at either end of the footpath when its school day began, around half an hour before that of the Infant School. Before taking this decision the Academy had consulted with the primary school and neither of its headteachers objected. But parents affected received only limited notice of the change and the Academy did not consult with the Council.
  4. The Academy says it took this decision to safeguard pupils on its site. It highlighted a concern that once it removed the temporary fencing there was nothing to stop an intruder crossing the grounds and gaining unauthorised access to its buildings.
  5. When Mr B learnt of the Academy’s actions he complained directly to it and alerted the Council. A senior officer in the Council’s Children’s Services contacted the Academy within a few days and questioned its actions. The Council said “it was not in the Academy’s gift” to take this decision unilaterally. The Council took this view because it had previously owned the land across which the footpath runs. It had transferred this to the Academy’s predecessor in title, the Foundation School. In doing so it had placed a covenant in the transfer agreement requiring the Foundation School maintain access along the path to the Infant School, at “all reasonable times by day and night”.
  6. The Academy argued its actions were reasonable. Despite the Council contacting it shortly before the decision to close the gates early took effect, the Academy proceeded with this action. It told the Council it had consulted the Primary School headteachers. But the Council repeated it considered its actions unsatisfactory. In a further email sent in February 2019 it said this was because the Academy had not consulted with it “or parents”.
  7. I have not identified that any communications followed between Council and the Academy until July 2019 when two Health and Safety specialist officers working for the Council visited the Academy. But I noted in June 2019 a meeting held at the Academy recorded the view that it faced being “sued” by the Council for its actions.
  8. The July 2019 report concluded the actions of the Academy reasonable, taking account of its safeguarding concerns. That report did not consider the impact of closure of the gates on parents or pupils using the path to access the Infant School.
  9. In August 2019 the Council sought legal advice. This confirmed it had the power to go to Court and seek to enforce the covenant. It could ask the Court for a declaration requiring the Academy to keep the gates open long enough to enable parents and pupils to access the Infant School for the start of its school day. But such action was at its discretion.
  10. Later that month the Council corresponded with the Infant School. Its headteacher confirmed the Academy had told it of its intent to close the gates earlier in the morning before it took this action. They confirmed the Infant School had not objected at the time and nor did it object at the time of the Council’s enquiry. The Infant School said it knew of only two parents unhappy with the decision. Separately the Academy had commented to the Council that it was only aware of Mr B’s dissatisfaction with its decision. While the Council says it has only received one complaint about this matter, from Mr B.
  11. The Council also took further legal advice, although this was not confirmed in writing until November 2019. This second legal advice considered the extent to which the Council’s overall duty to have regard to the safeguarding of children impacted on the initial legal advice given. The legal advice did not change in respect that the Council still had the power to go to Court and seek a declaration requiring the gates remain open longer in the morning. However, the decision to seek such a declaration remained at its discretion.
  12. Before receiving confirmation of this advice in writing, the Council had already written to Mr B saying it did not plan on taking further action. In October 2019 it wrote to him saying that in view of the Infant School’s position it did not consider it reasonable to take further action. It said this was because the covenant was for the benefit of that school and it did not object to the Academy’s actions.
  13. Later, Mr B also made a complaint to the Council. In its reply the Council again defended its actions saying:
  • the issue raised by Mr B was not one “our complaints process would pick up […] as the area of land is neither owned, maintained or controlled by the Council”;
  • the Academy had the ‘prerogative’ to close the path on safeguarding grounds;
  • the Infant School had supported the Academy’s decision.
  1. I have noted that separately Mr B also corresponded with the Council’s Countryside Access Team, who process requests to register footpaths as public rights of way. He asked if it was possible to “dedicate a private right of way” in favour of a specific purpose, to allow parents and pupils access to the Infant School. That Team has told Mr B there is no procedure to do this. I understand Mr B accepts this advice and he has not sought to prolong this correspondence. I will not return to this matter in my findings below.
  2. During this investigation Mr B told me the gates had re-opened for longer hours in response to measures taken to secure the safe passage of children during the COVID-19 pandemic. Subsequently the Academy has erected new perimeter fencing and the path to the Infant School has now re-opened at the earlier time. The path takes a slightly different route to previously and is narrower as a result of how the fencing has been erected.
  3. In comments on a draft of this decision the Council asked me to take account of various legislation including sections from the School Standards Framework Act 1998 and the Education Act 2002. The passages it quoted refer in general terms to the powers of school governing bodies, consultation arrangements and schools' safeguarding duties.

Findings

  1. I find the Council had no adequate warning of the Academy’s decision to restrict the opening times of the gates serving the footpath in February 2019. The Council therefore had no opportunity to question or object to this course of action. I also find that when it learnt of the Academy’s actions the Council did as I might expect. It questioned with the Academy why it had taken this step and registered its unhappiness at not being consulted. I find no fault in its immediate response and in entering this correspondence with the Academy.
  2. But when it became clear the Academy did not intend to change its actions, the Council had to decide what to do next. I find there is little information that sheds light on the Council’s thinking between March and June 2019, but it appears in this time to have viewed the Academy’s actions unacceptable. It gave the Academy reason to believe it would take legal action. I am satisfied from reading the legal advice it later received, the Council could have had such recourse if it chose.
  3. However, that decision was at the Council’s discretion. It was never obliged to take legal action to require the gates stay open longer. I am satisfied two factors persuaded the Council not to do so. The first being that it accepted the Academy had legitimate child safeguarding concerns. The second being that the Primary School and particularly the Infant School did not object to the Academy’s actions.
  4. I explained above the role of the Ombudsman is not to criticise a Council’s decision on the basis that a complainant disagrees with it. So long as the Council has made its decision properly we have no reason to fault it. A ‘proper’ decision in this context is one that has taken account of relevant matters and not taken account of anything irrelevant.
  5. In this case I consider the matters referred to at paragraph 25 are relevant to the Council’s decision. I also accept that in taking this decision it was relevant for the Council to consider the legislation it has referred to. Although I also note all this legislation was in place at the time it transferred land to the Academy’s predecessor in title, the Foundation School. So, none of this legislation prevented the Council having discretion to seek to enforce the covenant if it chose.
  6. I am also satisfied the Council took nothing irrelevant into account. But I find it did not take account of one further relevant factor. It did not consider the impact of the early closure of the gates on parents (and by implication pupils) who used the footpath. This was despite it identifying in February 2019 the Academy did not appear to have taken the needs of this group into account.
  7. I cannot see the Council ever returned to consider this issue further. I note that only Mr B appears to have pursued a complaint about the early closure of the gates. I find this may indicate few parents were inconvenienced or dissatisfied with the Academy’s actions. However, I do not think this can be assumed. I also do not think it follows that just because the Infant School Headteacher did not object that they spoke for parents who were not consulted. I note there is no evidence the Infant School undertook its own consultation on the earlier closure times, for example.
  8. I note the Council undertook a comprehensive study to understand why the Academy closed the gates early. I make no criticism of that. It wanted to understand the ‘pros’ of the Academy’s decision. But it should also have made a similarly detailed study of the potential ‘cons’ – namely the impact on parents and pupils of closing the gates early. It should have considered the inevitable inconvenience caused to some users of the path, including any impact on disabled users. One way the Council could have done this was by approaching this matter ‘as if’ it owned the land. In which case I am sure it would have considered its duty to consult on such a change and considered its duties under the Equality Act. It should have weighed such considerations in the balance before making its decision on legal action. It did not do this. This was a fault.
  9. I cannot say if taking better account of footpath users would have led the Council to a different decision on the merits of taking legal action. But nor can I rule out that it might have done. We regard such uncertainty as an injustice.
  10. I have gone on next to consider how the Council answered Mr B’s complaint. I consider it was wrong for it to say the matter he wanted to complain about was not one falling under its complaint procedures. His complaint engaged with decisions and actions taken by its Property Services and Children’s Services, both of whom clearly knew of the Council’s power to potentially pursue legal action against the Academy.
  11. It was also wrong to say the Academy had the ‘prerogative’ to close the gates when it wished. This might imply the Academy could close the gates when it liked. This is not what the covenant said. It is only reserved to the Academy to close the gates at reasonable times. The Council could say it considered the Academy complied with this, but it should not have implied the Academy had unfettered rights over the gates. Its choice of language was poor here.
  12. The Ombudsman expects local authorities to be open and transparent in their communications with those who complain. I find this response potentially misleading on these two counts as combined they implied there was nothing the Council could do about the Academy’s actions. This is not the case. It used its discretion not to take legal action, which is a different matter. It is the difference between choosing not to take a course of action rather than being unable to. By giving the wrong impression the Council failed to meet the standard we expect. That justifies a second finding of fault.
  13. The injustice this has caused Mr B is that of some understandable and avoidable time, trouble and frustration in pursuing his complaint.
  14. I welcome that since Mr B made his complaint events have moved on and a solution has been found which has led to the re-opening of the path at the earlier time. I note that has resulted in a slight re-routing of the path and its narrowing in places. The Council is invited to consider the implications of these actions. But it outside the scope of this investigation for me to express any view on these matters.

Agreed action

  1. In paragraphs 31 and 35 above I have set out where I consider fault by the Council caused Mr B an injustice. The Council accepts this finding. In order to remedy this injustice, it has agreed that within 20 working days of this decision it will:
      1. apologise to Mr B accepting the findings of this investigation;
      2. seek assurance from the Academy about whether it has any plans to change the opening times of the gates in future. In making such contact the Council will set out what it considers would be sufficient notice of any such plans that would enable it to consider the merits of such changes before they are enacted. This is specifically to allow for consideration of the needs of the users of the footpath in any decision.

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Final decision

  1. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mr B. I am satisfied the Council has agreed action that will remedy this injustice. Consequently, have completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman

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