Privacy settings

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Royal Borough of Kingston upon Thames (20 005 803)

Category : Transport and highways > Rights of way

Decision : Upheld

Decision date : 03 Feb 2021

The Ombudsman's final decision:

Summary: Ms X complains about the Council’s handling of her request to modify the Definitive Map to include some paths she uses regularly as public rights of way. The Council delayed responding to Ms X’s application and failed to tell her about her right to appeal its decision to the Secretary of State. The Council should apologise, make a new decision giving appeal rights and pay Ms X £150.

The complaint

  1. Ms X complains about the Council’s handling of her application to alter the Definitive Map to include several footpaths as public rights of way.
  2. Ms X says the Council delayed responding to her application and failed to meet the requirements of the law.
  3. As a result, Ms X says the Council has wrongly failed to recognise several rights of way which she uses regularly to access local services.

Back to top

The Ombudsman’s role and powers

  1. 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’. 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)
  2. 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))
  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)

Back to top

How I considered this complaint

  1. I considered the complaint and the Council’s response.
  2. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
  3. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Public Rights of Way

  1. There are four categories of rights of way which are shown on a Definitive Map (which is a legal record of their existence). County councils and unitary authorities are obliged to keep a copy of the Definitive Map for their area and this determines what is a public right of way. The categories are:
    • footpaths – only for people on foot
    • bridleways – for people on foot, on pedal cycles, on horseback or leading a horse
    • restricted byways – for people on foot, on horseback, leading a horse or in/on any vehicle which is not mechanically propelled
    • byways open to all traffic – as above but also including motor vehicles (but there must be evidence that the use is mainly on foot or horseback)
  2. The Council has a duty to keep the Definitive Map under review, and to make modification orders as necessary to keep the map and statement up to date. (Wildlife and Countryside Act 1981, section 53, paragraph 2(b))
  3. Where a way has been used by the public for 20 years, the way is deemed to be a highway unless there is evidence there was no intention in that period to so dedicate it. (Highways Act 1980, section 31, paragraph 1)
  4. Any person can apply to the Council to make an order to modify the Definitive Map. The Council must make an order if it has evidence that a right of way exists but is not shown on the Definitive Map. (Wildlife and Countryside Act 1981, section 53, paragraph 3(c)(i))
  5. If a Council decides not to make an order, the applicant can appeal to the Secretary of State within 28 days. (Wildlife and Countryside Act 1981, Schedule 14, paragraph 4)
  6. The Council must keep a register, available to the public, of all applications to modify the Definitive Map. (Wildlife and Countryside Act 1981, section 53B, paragraph 1)

What Happened

  1. In May 2020, Ms X wrote to the Council asking that it make an order to modify the Definitive Map. She asked the Council to recognise several paths in an estate near her home as public rights of way.
  2. Ms X told the Council she had been using the paths for 29 years to access various local services while avoiding walking along main roads.
  3. In June, Ms X complained to the Council because she received no response to her application. The Council’s acknowledgement of her complaint was the first response Ms X received.
  4. The Council asked Ms X to resend the application, accepting that it had lost her original application.
  5. Throughout July, the Council updated Ms X about her request. It said it needed to seek advice and apologised for the delay.
  6. In August, the Council told Ms X as part of its stage 1 response to her complaint that it did not intend to make an order to modify the map. Ms X asked the Council to consider her complaint at stage 2.
  7. In September, the Council wrote to Ms X with its response to her stage 2 complaint. It said it would not make an order to modify the Definitive Map because the paths Ms X used are not contiguous. It advised Ms X to approach the Ombudsman if she was unhappy with the outcome.
  8. Ms X complained to the Ombudsman in October 2020.

My Findings

  1. Ms X had a right of appeal to the Secretary of State about the Council’s decision not to make an order. The Ombudsman would not usually investigate when such appeal rights exist. This is because the Secretary of State is better placed to consider the matter.
  2. However, the Council failed to advise Ms X that its decision carried a right of appeal. This is fault. Instead, the Council advised Ms X to contact the Ombudsman if she was unhappy with its decision. This denied Ms X the opportunity to appeal to the Secretary of State. This is an injustice to Ms X.
  3. The Council should make a fresh decision on the application and write to Ms X setting out the decision and telling her about her right to appeal to the Secretary of State.
  4. The Council took four months to respond to Ms X’s application. This includes a period of a month when the Council did not acknowledge Ms X’s application and, as it accepts, then lost it. This delay is fault. The Council has apologised for the delay. However, I do not consider this a suitable remedy for the injustice caused. Ms X went to significant time and trouble to chase the Council’s response to her application and her resulting complaints. To recognise this, the Council should pay Ms X £150.
  5. The Council’s records show there was confusion within the Council about its duties under the Wildlife and Countryside Act 1981. There is no officer in the Council with responsibility for public rights of way. This contributed to the delay because the Council did not at first know who should handle Ms X’s request and then had to seek advice to decide it.
  6. The Ombudsman cannot make findings or recommendations about the Council’s use of personnel or division of budgets. However, the requirement to keep the Definitive Map under review is law. The Council should have a policy or process to enable it to meet its legal duties.
  7. There is also no evidence the Council keeps the public record of applications, as required by law. This is fault.

Agreed action

  1. To remedy the injustice to Ms X from the faults I have identified, the Council has agreed to:
    • Apologise to Ms X in writing
    • Issue a fresh decision on Ms X’s application, giving her a right of appeal to the Secretary of State
    • Pay Ms X £150
  2. The Council should take this action within four weeks of my final decision.
  3. To improve its service the Council should produce guidance for relevant staff about its duties on public rights of way. This might include:
    • The legal requirements
    • How to deal with an application to modify the Definitive Map
    • Who should respond to applications
    • The process for making and publicising an order made under the Act
  4. The Council should tell the Ombudsman about the action it has taken within four months of my final decision.

Back to top

Final decision

  1. I have completed my investigation. There is fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page