Summary: We will not investigate this complaint about the Council’s failure to clear obstructions along a public footpath. This is because it is reasonable for Mr X to pursue this matter at court and we could not achieve the outcome Mr X wants.

The complaint

1. Mr X complains the Council has failed to use its statutory power to remove obstructions along a public footpath which have made the footpath impassable for several years.

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The Ombudsman’s role and powers

2. We 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. We do not start or continue an investigation if we decide:

• any injustice is not significant enough to justify our involvement, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

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

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law 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).

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How I considered this complaint

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

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My assessment

7. In April 2021, Mr X complained to the Council that access along a public footpath was obstructed in several places. The Council failed to remove the obstructions so Mr X complained. The Council responded to the complaint on 9 January 2023. It acknowledged the footpath was still obstructed and said it would take action to address the matter.
8. On 9 February 2024, Mr X contacted the Council again and asked for an update. The Council replied saying the obstructions and access issue on the footpath were ongoing. It explained the actual route of the footpath was unclear and differed from the walked route, so it needed to carry out a survey to establish the correct line. It also said some obstacles on the walked route could not be moved, and that it may therefore need to divert the footpath instead, which would need agreement from several third-party landowners.
9. The Council has a legal obligation under the Highways Act 1980 to keep the right of way open and usable. It accepts it has failed to comply with this duty and Mr X has served notice on it under Section 130A of the Act to ask it to remove the obstructions. It has failed to do so and the next step for Mr X is to apply to the Magistrates’ court under Section 130B for an order requiring it to take such steps as the court deems necessary to remove the obstructions.
10. Mr X says he has been advised to proceed with care as the costs of taking the matter to court are in the region of £2,000. But if Mr X wishes to resolve the issue we consider it would be reasonable for him to use this process. It deals specifically with the issue Mr X has raised, any decision the court makes is enforceable and the court can impose enforceable timescales for the Council to take action, which we cannot. We appreciate the cost is significant, but in this case it does not make an application unreasonable.
11. In any event, the Council has explained the obstructions are not straightforward to resolve and may require either significant changes to the existing path or a formal diversion of the route. These involve complex legal processes and third-party agreement and it is therefore unlikely we could achieve the outcome Mr X wants.

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Final decision

12. We will not investigate Mr X’s complaint. This is because it is reasonable for Mr X to pursue this matter at court and we could not achieve the outcome he wants.

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Investigator's decision on behalf of the Ombudsman