The Ombudsman's final decision:
Summary: Mr X is acting on behalf a bridleway association. He has made a complaint about the Council for failing to determine a number of map modification applications which concern public rights of way. The Ombudsman has found fault that the Council has failed to determine the applications as directed by the Secretary of State. That said, we cannot provide the outcome Mr X wants as the Council has a plan in place for addressing its backlog and we cannot direct its financial resources in this respect. Further, we do not consider the complainant has suffered a personal and significant injustice by reason of the fault by the Council.
- The complainant, who I refer to as Mr X, is bringing a complaint on behalf of a bridleway association (the Association). Mr X says the Council has delayed in dealing with definitive map modification applications (DMMOs) made between 1992 and 1994. Further, he says the Council has failed to comply with a direction by the Secretary of State to deal with the applications within a named timescale.
- Mr X says this matter has caused him distress and excessive time and trouble. He wants the Council to comply with directions from the Secretary of State and determinate the applications without unreasonable delay.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 the fault has not caused injustice to the person who complained or the injustice is not significant enough to justify our involvement.
(Local Government Act 1974, section 24A(6), as amended)
- 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), as amended).
- 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).
How I considered this complaint
- I have reviewed Mr X’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, including supporting documents and applicable policy and legislation. Both the Council and Mr X received an opportunity to comment on a draft of my view before a final decision was made.
What I found
Background and legislative framework
- All local authorities must prepare and keep up-to-date ‘definitive maps and statements’ (DMS) to show public rights of way (PROW) in their area such as public footpaths and bridleways.
- The law sets out how people may apply to their council for a DMMO to have PROW recorded on the definitive map. This is under s53 of the Wildlife and Countryside Act 1981 (s53). Once the council has a properly made DMMO application, it should “as soon as reasonably practicable” decide whether to make an order to modify the DMS.
- A decision to make an order needs evidence a right of way exists or is reasonably alleged to exist. The DMS can be modified, if evidence can be found to show that there is an error. There may be evidence to show that a right of way shown on the map and statement is not a public right of way. Or it may be alleged that a public right of way exists that should be added to the map. Where a local authority is satisfied that the evidence supports a change, a map modification order (MMO) is made to vary the map and/or statement to reflect that evidence.
- 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 a decision to be made.
- 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.”
- 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. The Council must comply with a legal direction.
- 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.
- 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…”
Map Modification Order
- Anyone can apply to the local authority for an MMO. The procedure for making a modification order depends on whether the order is to be made upon the authority’s own initiative or because of an application coming in from outside. The format of the order is prescribed in the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993.
- Applications for a modification order are made to the authority under s53(5) WCA 1981. The procedure for an application is set out in Schedule 14 WCA 1981. If the authority fails to make a decision within 12 months, the applicant may seek a direction from the Secretary of State. Further, if the authority decided not to make the sought MMO, the applicant may appeal to the Secretary of State.
- The Planning Inspectorate acts for Secretary of State with respect to the determination of an DMMOs by local authorities.
- Between 1992 and 1994, three definitive map modification applications (the Applications) were sent to the Council. The Council failed to determine the Applications within 12 months. Eventually, the Association referred the Council and applications to the Secretary of State for non-determination.
- In October 2018, a legal direction notice was served on the Council by the Secretary of State. This required it to determine the Applications by October 2019 at the latest. However, the Council again failed to determine the Applications.
- In December 2020, Mr X made a complaint to the Council regarding the three Applications and the Council not determining them. He said the Council has acted against the instructions of the Secretary of State and had not provided any update to the Association as to progressing the Applications.
- In January 2021, the Council responded and told Mr X that map modification applications are dealt with in order of receipt. It also said the Applications he referred to were ranked 61, 62 and 63 for action. As regards to their estimated completion, the Council said that over the past two years, it was progressing around 10 applications a year and was unable to giver exact timetables.
- In addition, the Council set out that it is actively looking to recruit a further officer to help progress the applications as some staff from its Rights of Way team had left. In addition, it also said it was committed to training new staff which in time would have an impact on the existing backlog of applications. It further explained that it would keep outsourcing under review but felt that utilising its existing specialist staff represented best value for public money.
- Mr X later escalated his complaint and disputed the three applications were ranked 61 to 63, as suggested by the Council. Mr X listed all the definitive map modifications that the Secretary of State has directed the Council to determine. Mr X says that in chronological order, the applications should be ranked 48 to 50. Further, Mr X argued the Council’s plan for addressing the backlog was neither cost efficient nor fit for purpose.
- In February 2021, the Council sent its final response to Mr X. It told Mr X that the ranking of applications is always subject to change when matters are considered. It said the Applications were now ranked at 44 to 46 and apologised Mr X was not given this information in the first instance. The Council said this is because all map modifications applications were at the time being reviewed which changed their order of priority. The Council also said it was satisfied with its plan for determining the backlog of applications.
- In addition, the Council told Mr X that it expected to determine the Applications within the next five years, namely by February 2026. Still dissatisfied, Mr X brought the Association’s complaint to the Ombudsman.
- By law, I cannot investigate any complaint where the complainant may appeal to a government minister, unless it would be unreasonable to do so. The Planning Inspectorate acts on behalf of the Secretary of State and considers appeals with respect to non-determination of map modification applications. In this case, the Planning Inspectorate received an appeal in respect of the Applications and issued a legal direction notice on the Council. In these circumstances, the Ombudsman does not have any jurisdiction to investigate the Council’s substantive consideration of the Applications.
- That said, I can assess delay by the Council, particularly after a notice has been served by the Secretary of State requiring determination. The Council appear to acknowledge it has a backlog of applications and has failed to meet deadlines issued by the Secretary of State.
- The Ombudsman has recently issued a Focus Report (the Report), ‘Under Pressure’. The Report recognises that 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.
- 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. That said, I am satisfied with the Council’s explanation to Mr X and its intended plan of action. In particular, the Council has said it is recruiting and training additional staff and will keep outsourcing of the applications under review. It has also given Mr X an expected completion date for the Applications he has referred to.
- On that basis, I do not consider I can achieve anything further for Mr X, especially as the Ombudsman cannot direct the 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.
- I must assess whether the complainant has suffered a personal and significant injustice. This means I must determine whether Mr X and the Association has suffered serious loss, harm or distress by reason of the identified fault (above). In my view, Mr X is bringing a complaint on behalf of a larger group of people to raise wider public interest matters about the Council’s responsiveness to applications generally. In my view, the complainant is not the person mainly affected and is complaining about a secondary impact on a wider group. Our guidance states that in these circumstances, complaints are best addressed to their local councillor or Member of Parliament rather than the Ombudsman.
- In addition, I do not consider there is a personal and significant injustice because of the time it has taken Mr X to complain to the Ombudsman, despite being aware of delays since 1992. In my view, this suggests it has not been an issue causing him or the Association such significant injustice as he could have come to us sooner. I do not consider therefore Mr X or his Association has suffered a personal and significant injustice by reason of fault by the Council.
- The Ombudsman has found fault by the Council for failing to determine the Applications as directed by the Secretary of State. That said, we cannot provide the outcome Mr X wants as the Council has a plan in place for addressing its backlog and we cannot direct its financial resources in this respect. In addition, I do not consider the complainant has suffered a personal and significant injustice because of the fault by the Council.
Investigator's decision on behalf of the Ombudsman