Summary: We will not investigate Mr C’s complaint that the Council has refused to replace barriers originally installed in 1997 which had restricted the use of a footpath. This is because we would not be able to find the Council was at fault when it went ahead and removed the barriers and further investigation would not lead to a different outcome.

The complaint

1. The complainant, Mr C, complained that the Council has refused to replace barriers originally installed in 1997 which had restricted the use of a footpath.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

3. I considered information provided by the complainant, including correspondence, plans and photographs.
4. I considered the Ombudsman’s Assessment Code.
5. Mr C has had an opportunity to comment on my draft decision. I considered his comments before making a final decision.

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My assessment

6. Mr C told us the Council failed to consult with residents living nearby and to consider their objections before removing the barriers.
7. There was no requirement on the Council to carry out such prior consultation. Once the council’s officers had established the footpath was obstructed, it had a duty to remove that obstruction irrespective of any objections from people living nearby. So, we would not be able to find the Council was at fault when it went ahead and removed the barriers. The Council also had to take account of the provisions of the Equality Act 2010 which was not in force when the barriers were originally installed.
8. Mr C told us, since the Council removed the barriers, he and his neighbours observed cyclists using the path at very alarming speeds. He said this resulted in very near misses involving vulnerable pedestrians. He is concerned about the likelihood of serious injury. Mr C told us the work the Council has done to the path surface has enabled cyclists to travel faster and the signage is inadequate. He said the Council has failed to investigate other options which might address residents’ concerns.
9. Mr C said in 1997 the Council at that time felt the barriers were justified. He also complained about the risk assessment and camera survey the Council completed after its removal of the barriers. The Highways Act 1980 does not require highway authorities to carry out risk assessments and camera surveys before removing an obstruction from a footpath. They are not factors which could affect its decision to remove the barriers because it had a duty to remove the obstructions once its officers had identified them.
10. Mr C has spent a good deal of time pursuing his concerns with the Council. His correspondence with the Council set out his concerns about public safety in detail. In its response to Mr C’s complaint the Council said it had attempted to allay these concerns after its removal of the barriers. After visiting the site the Council’s officers concluded there was insufficient need for access to the footpath to be restricted. Its view is it has been more than reasonable in trying to address his concerns. Mr C disagrees. He said the Council which dealt with the issue more than 20 years ago felt the insertion of the barriers was needed to protect people. Mr C told us he now finds it incredulous that the Council should be allowed to act as it has done in this case.
11. It is not our role to adjudicate on highway safety issues. We are not an appeal body with powers to substitute our decision for that of the Council. It is for the Council, as the highway authority, to decide how much weight to attach to each relevant factor when deciding what measures are justified. The Council has visited the site and considered the points made by Mr C and his neighbours before issuing its final decision on the complaint. It has done what we would expect in reaching its decision. Further investigation would not lead to a different outcome for Mr C.

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Final decision

12. We will not investigate Mr C’s complaint because we would not be able to find the Council was at fault when it went ahead and removed the barriers and further investigation would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman