The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s failure to clear an obstruction along a public footpath. This is because it is reasonable for Mr X to pursue this matter at court.
The complaint
Mr X complains the Council has failed to remove an obstruction along a public footpath, which has made it impassable.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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).
How I considered this complaint
I considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X says he has been in contact with the Council over the past 24 years about a public footpath that is obstructed. He complains the Council has failed to remove the obstruction.
There is a legal process which deals with obstructions to footpaths and I have seen nothing to show it would not have been reasonable for Mr X to use it in this case. Section 130 of the Highways Act gives a member of the public the right to serve a notice on the council requiring it to clear an obstruction. If it fails to do so, the complainant can then ask the magistrates’ court to order it to do so.
Whether or not Mr X chooses to use this process, the Council has agreed to look at the matter again now as a service request. He may therefore wish to wait for the outcome of the Council’s further investigations before deciding how to proceed.
Final decision
We will not investigate Mr X’s complaint. This is because it is reasonable for Mr X to pursue this matter at court.
Investigator's decision on behalf of the Ombudsman