Summary: We will not investigate this complaint about the Council’s response to a report of a blocked public right of away, and the subsequent complaint. An investigation is unlikely to lead to a different outcome, it is reasonable to expect the complainant to use the alternative court remedy, and the injustice caused by the alleged fault is not significant enough to warrant our continued involvement in the matter.

The complaint

1. Mr X complains about the length of time the Council has taken to respond to his reports of an obstruction across a public right of way, and his subsequent complaint.
2. He says he has been denied his right to pass and repass a right of way set in beautiful surroundings, and he has spent time and effort on pursuing the matter.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We can investigate 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. So, we do not start 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
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. With regard to the first bullet point, we can consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. And with regard to the second and third bullet points, our role is to consider complaints where the person bringing the complaint has suffered significant personal injustice as a direct result of the actions or inactions of the organisation. This means we will normally only investigate a complaint where the complainant has suffered serious loss, harm, or distress as a direct result of faults or failures. We will not normally investigate a complaint where the alleged loss or injustice is not a serious or significant matter.
7. The law also says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
8. Finally, it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

9. I considered
• information provided by Mr X and the Council, which included some of their complaint correspondence, and an update on the current status of the matter.
• information about the proposed diversion/extinguishment of the affected rights of way, as available on the internet.
• the Ombudsman’s Assessment Code.

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My assessment

10. I appreciate Mr X is unhappy that a public right of way has remained blocked since he first contacted the Council in mid-2024, and thinks the Council should have done more to resolve the matter.
11. The Council’s preferred option is to process a diversion/extinguishment order, rather than request the removal of the obstruction. This is a decision it is entitled to make. I understand the Council recently consulted on the proposal to divert and extinguish the affected rights of way, and says once it gets approval from all the affected parties to proceed, it will instruct its legal team to process the relevant order. Whilst I acknowledge it has taken some time to reach this position, an investigation by the Ombudsman is unlikely to lead to a different outcome or achieve much more for Mr X. So, we will not pursue the matter further.
12. And if Mr X thinks the Council should clear the obstruction in the meantime, then it is open to him to serve notice on the Council under section 130a of the Highways Act requiring it to do so. If it does not act, he can ask the Magistrates Court to order the Council to take action. With reference to paragraph 7 above, as we would reasonably expect Mr X to make use of this alternative court remedy, this part of the complaint falls outside our jurisdiction and will not be investigated.
13. In addition, whilst Mr X might feel frustrated that he has been denied the opportunity to use this right of way, I am also mindful that he lives some distance from it. On balance, I am not persuaded the injustice caused to Mr X by the obstruction is so significant as to warrant our continued involvement in the matter. So, we would not start an investigation for this reason too.
14. As we are not investigating the substantive matter being complained about, it would not be a good use of our resources to pursue any related concerns about the Council’s complaints process in isolation.

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Final decision

15. We will not investigate Mr X’s complaint primarily because:
• an investigation is unlikely to lead to a different outcome,
• it is reasonable to expect him to use the alternative court remedy, and
• the injustice caused by the alleged fault is not significant enough to warrant our continued involvement in the matter.

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Investigator's decision on behalf of the Ombudsman