Summary: Mr D complained the Council delayed resolving a blocked public right of way. We found the Council at fault for delay and for failing to review Mr D’s original complaint in 2022. This potentially meant the public right of way remained blocked for longer, and caused Mr D frustration and inconvenience pursuing the matter. In recognition of this, the Council escalated Mr D’s complaint in 2023. It also agreed to update Mr D on the progress of the case going forward.

The complaint

1. The complainant (whom I refer to as Mr D) said the Council delayed dealing with a blocked public right of way (PROW) since 2020. He also said the Council failed to consider his complaint correctly.
2. This resulted in restricted pedestrian access out of the village, with the only alternative being to walk on a road with no footpath. It also meant the loss of a dog walking route Mr D used.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

5. We exercised discretion to look back to 2020 when Mr D first reported the issues with the blocked PROW. Our investigation covered 2020 through to May 2024.

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How I considered this complaint

6. We spoke to Mr D and considered the information he provided. We also asked the Council questions and examined its response. Some of that data was confidential and cannot be shared with Mr D as it relates to third parties.

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What I found

What happened

7. In June 2020 the Council received a report from an unnamed source about a PROW blocked by a fence. The Council subsequently sent a warning letter to the landowner/occupier asking them to remove the fence within 28 days, it would then inspect the site. We have no evidence of any further action being taken by the Council until 2023.
8. On 1 August Mr D’s partner reported the PROW was blocked to the Council. The Council replied that maintenance responsibility for obstructions/ stiles/ gates lay with the occupier of the land. The Council would look to identify the occupier and tell them if action was needed. Depending on the priority of the case and resources the case could “take a significant amount of time to resolve”. The Council said it could not provide progress updates on cases. That week the Council assessed the priority level of the case using its scoring system. It found it was low/ medium priority. It also confirmed the occupier of the land. The Council wrote to the occupier on 24 August asking for repairs to be done within 28 days. The occupier could send photographs to evidence the work was complete or the Council would inspect.
9. On 6 October Mr D told the Council the land was up for sale and no action had been taken to clear the PROW. The Council replied ten days later that the case was still being progressed. On 3 November the Council requested a Land Registry search for a new owner of the site. On 11 November Mr D complained to the Council about lack of action, he asked it consider that as a stage two complaint. On 15 November the Council replied. It explained it had provided a stage one complaint response because this was the first formal complaint Mr D had made. A stage two response was issued after the stage one. The Council advised the landowner/occupier had not removed the fence or repaired the broken stile. It explained how it prioritised cases and this case was assessed as low to medium so the Council would not seek immediate enforcement action. It accepted it should have acted sooner about the fence obstruction which had been reported in 2020. It would review the case with a view to beginning a legal process.
10. In January 2024 Mr D told the Council part of the obstruction had been removed but the PROW was still not accessible. On 29 February the Land Registry reported the new owner was not registered. On 14 March Mr D complained to the Council, he was unhappy he had not received a stage two reply previously and the PROW was still blocked. The Council subsequently said it would not progress the complaint to stage two because it could not add to what had been previously stated. It referred Mr D to the Ombudsman. Also, in mid-March the Council’s PROW Officer carried out a site inspection and found the PROW was still obstructed. On 2 April the Council issued a Notice under section 297 Highways Act 1980, requiring details of the owner of the land. The Council continued working on finding out the current owner in April and May.

Events outside my investigation

11. It appears the Council obtained details of the new owner in June. It sent a warning letter to the new owner at the end of June asking they remove the obstruction. A PROW Officer inspected again on 1 August and confirmed the obstruction remained. I understand the Council has written to the owner in September giving them 28 days to deal with obstructions.

What should have happened

PROW

12. A resident can report a blocked PROW to the Council. The case is allocated to the PROW Team who will carry out an initial check on the report to assess the priority level. The Council considers a range of factors when assessing priority: user status of the route, the potential effect of the defect on users, a risk likelihood assessment and risk severity. It assigns a score to each category (5 being highest, 1 lowest) and then reaches a total score, a case must be over 16 to be high priority.
13. Once the priority is assessed, a PROW Officer will handle the case. If they are satisfied there is a defect, they will identify the owner/ occupier of the site. The Council can use the Land Registry to obtain information. It can also issue a Notice under section 297 Highways Act 1980 for unregistered land. Once the Council receives confirmation of the owner, they will ask the owner to rectify the defect. The Council can issue a warning letter allowing 28 days for the defect to be remedied. The owner can supply proof the work is complete, or the Council should carry out a site inspection. If works are not completed the Council has the option to consider further enforcement action but this will be prioritised in order of the severity of the issue, that means high priority cases will be dealt with first.

Complaints process

14. The Council has a two stage complaints process. Initial complaints are dealt with as a stage one complaint and replied to by the service area. If the complainant remains dissatisfied, they can request a stage two (escalated) complaint, usually within 20 working days of the stage one decision. The Council does not have to provide a stage two response for all cases. If it considers escalation of the case will not achieve anything further it can refuse a stage two request and, where appropriate, refer the complainant to the Ombudsman.

Our investigation

15. The Council told us it prioritises cases, using its limited resources to deal with the most pressing ones first. In all cases, it sends a warning letter to the landowner/occupier giving them 28 days to act. It said there is a good rate of success in this resolving the issue. If the issue is not resolved, enforcement action depends on the priority level of the case. It can be a considerable amount of time before the Council will start enforcement action for low or medium priority cases.
16. Because the Council assessed this case as lower priority, it took no further action after sending the warning letter to the landowner/occupier. It had also paused inspections due to the COVID-19 pandemic.
17. The Council said it manages expectations at an early stage by telling people it can take a considerable amount of time to resolve matters, and that it does not provide updates.
18. The Council introduced annual reviews of unresolved enforcement cases in 2022. It looks at any changes in circumstances which may affect the priority of the case. Unfortunately, this did not happen for Mr D’s case, so when he reported another issue in 2023, the Council escalated the case. However, despite not reviewing the case in 2022, the Council said there was no guarantee it would have taken further action at that time. It would depend on the circumstances.

Was there fault by the Council

19. The was delay by the Council. It was aware of the blocked PROW in 2020 and issued a warning letter to the landowner/occupier. However, we found the Council did not take any further steps to restore access to the PROW until Mr D complained again in 2023. The Council acknowledged this error in its complaint response to Mr D. The Council also accepted to the Ombudsman that it failed to review Mr D’s case in 2022.
20. Once the Council reviewed matters when Mr X complained for a second time in 2023, we found the Council acted in line with its procedures. The evidence shows the Council followed the correct steps to progress the case. It assessed the priority level, identified the landowner, and issued a warning letter. The case took longer to progress because the land was sold, meaning the Council had to identify the new owner. This took some time, which was largely outside the Council’s control, but the Council dealt with this matter appropriately. Once it received confirmation from the Land Registry that the land was unregistered it issued a Notice under section 297 of the Highways Act 1980. We also found the Council continued to progress the case and acted in line with its procedures.
21. Mr D also refers to how the Council handled his complaint. We did not find the Council at fault here. It correctly advised Mr D in 2023 about the two-stage process and that his initial complaint could not be considered at the stage two level. The Council was right to issue a stage one complaint reply at that time. In respect of the 2024 complaint, the Council had the option to refuse to progress the case to a stage two complaint if it considered it would not be worthwhile.
22. We appreciate Mr D is not happy with the Council’s recent actions. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong.

Did the fault cause an injustice

23. The Council failed to progress the case after issuing a warning letter in 2020. It also failed to review the case in 2022. This meant the PROW has remained obstructed, potentially for longer than would have been the case if the Council acted without fault. I cannot say for certain the extent to which matters were prolonged. That is because the Council assessed the obstruction as lower priority, meaning it was unlikely to take swift action in 2020 when the landowner/occupier did not correct the issue. While the Council missed the chance to review the case in 2022, there is also no guarantee it would have acted at that time. It would depend on whether there was any change in the priority of the case, and on what other enforcement matters the Council was pursuing. But the fault did cause Mr X frustration and inconvenience, as not only did the footpath remain blocked, but he had to chase the Council and complain to progress matters.

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Agreed action

24. The Council agreed to update Mr D on the progress of his case within four weeks of our final decision. It also agreed to send Mr D further updates of any key actions on the case.
25. The Council should provide us with evidence it has complied with the above actions.

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Final decision

26. We completed our investigation. We found the Council at fault for delay and for failing to review Mr D’s original complaint in 2022. This potentially meant the public right of way remained blocked for longer, and caused Mr D frustration and inconvenience pursuing the matter. In recognition of this, the Council escalated Mr D’s complaint in 2023. It also agreed to update Mr D on the progress of the case going forward.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman