Summary: We will not investigate this complaint about extinguishing a right of way. This is because we cannot achieve the outcome Mr Y is seeking and there is not enough significant injustice to warrant our investigation.

The complaint

1. Mr Y complains the Council failed to extinguish or divert a right of way across his land when it developed the land in the 1950s.
2. Mr Y then decided to sell his property and the buyer had to pay the Council approximately £800 to have the right of way extinguished. Mr Y then agreed to pay his buyer £400 towards this cost. Mr Y says the fault caused him frustration and inconvenience.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met.
4. We do not start or may decide not to continue with an investigation if we decide any injustice is not significant enough to justify our involvement, or we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

5. I considered the information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr Y purchased his property in 2013. The property had been built in the 1950s by a former council on council owned land. Mr Y then came to sell his property in 2021. The buyer became aware an old right of way going through Mr Y’s property which had not been extinguished when his property had been built, or when the Council transferred ownership of the property to a local social housing association.
8. To progress the sale, the buyer applied to the Council to extinguish the right of way. The buyer paid approximately £800 to the Council for this. As Mr Y was friends with the buyer, he agreed to pay the buyer £400.
9. Mr Y complained to the Council in April 2021 and asked it to refund him the £400. The Council responded in August and September. It partially upheld his complaint, as the former council had failed to extinguish or divert the right of way when the property had been built in the 1950s. However, it said that it could not refund the application fee for extinguishing the right of way to Mr Y, as it had not been paid by him.
10. The Council further said it had followed its rights of way policy in reducing the charge for extinguishing the historic right of way by 50%. It also said that when Mr Y had bought the property in 2013, it was for him to ensure there were no issues with the property before completing the purchase. Consequently, as he had bought the property, he had accepted it with the right of way still present. Mr Y then approached us in October.

Analysis

11. Not all complaints received by us are accepted for investigation. The legislation gives us discretion as to whether a complaint should be pursued and, in reaching that decision, a preliminary assessment is made. We must take account of the degree of injustice sustained and whether there is any realistic chance of achieving a satisfactory outcome.
12. As part of our investigation, we asked Mr Y what he was seeking as an outcome to our investigation. Mr Y said he wanted a refund of the £400 he had paid his buyer for the application to extinguish the right of way. However, the agreement for Mr Y to pay his buyer £400 was between him and the buyer. The Council was not a part of this. Any payment Mr Y made was not a direct result of any fault by the Council, but as the result of his agreement with the buyer.
13. As Mr Y did not pay the Council any money, we could not recommend the Council refund him as the payment Mr Y made was not a direct impact on him because of the fault. Consequently, we could not achieve the outcome Mr Y is seeking.
14. Mr Y has said he was inconvenienced because of the Council’s fault. However, this injustice is not significant enough to justify our investigation.

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Final decision

15. We will not investigate Mr Y’s complaint because we cannot achieve the outcome he is seeking and there is not enough significant injustice to warrant our investigation.

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Investigator's decision on behalf of the Ombudsman