Surrey County Council (16 012 827)

Category : Environment and regulation > Drainage

Decision : Not upheld

Decision date : 19 Jun 2017

The Ombudsman's final decision:

Summary: Mr A complains the Council has failed to take action to address the lack of drainage on the road that runs along the outside of his property which causes repeated flooding of his land. While there were some minor administrative failings, the Council has no liability to take action to install drainage on the road and, as it has now agreed to carry out some works as a goodwill gesture to help Mr A, we will not pursue the complaint any further.

The complaint

  1. Mr A complains the Council has failed to take action to address the lack of drainage on the road that runs along the outside of his property and that this has resulted in repeated flooding of his land.

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What I have investigated

  1. I have looked at Mr A’s complaint from February 2015. The last paragraph of this statement explains why I have not investigated earlier events or considered whether the Council’s negligence caused damage to Mr A’s property.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. If we are satisfied with a council’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)
  3. 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)
  4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

  1. In considering the complaint I spoke to Mr A and reviewed the information he and the Council provided. Both Mr A and the Council were given the opportunity to comment on my draft decision.

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What I found

  1. In February 2015, after an officer met with him at his property, the Council sent Mr A a response to the complaint he had made about flooding to his property. The Council confirmed there was no highway drainage on his road and that any proposed drainage would need to be laid through his property which would then be his responsibility, as landowner, to maintain. Mr A was advised the matter would be referred to the Drainage Team to carry forward and that if he did not hear anything further he should follow up on the matter. Mr A did not pursue his complaint any further at this time.
  2. The Council heard from Mr A again in May 2016 when he contacted the Highways Team to find out what was happening having had no contact about the matter for over a year. In June Mr A’s land was flooded again and his driveway damaged.
  3. In July the Council sent Officer X to investigate Mr A’s concerns and as a result of his findings he advised Mr A that he proposed to install grips through part of the road to drain the carriageway before it flowed into the bellmouth of Mr A’s property. He confirmed he would discuss this, and the possibility of installing setts (stone paving blocks) to divert waters to the verge, with the local highways officer. He also advised Mr A to investigate what he could do himself to improve drainage and that he could submit a claim to the Council for damage caused by previous flooding incidents.
  4. In September the Council installed the grips but the following month Mr A advised they had not resolved the problem and had in fact made it worse. Officer X visited the site again and confirmed to Mr A that the Council would install some additional grips and install kerb edging across Mr A’s driveway. Officer X explained that as the latter work required additional funding that could only be allocated by the 2017/18 budget, it would not take place before April 2017.
  5. Unhappy with having to wait for the kerb edging work, and having received confirmation from the Council’s insurers that his claim for damages had failed, Mr A complained to the Ombudsman. As the complaint had not been progressed to the end of the Council’s complaints procedure, we referred the complaint back to the Council for its Stage 2 investigation.
  6. In its March response at Stage 2 the Council confirmed again that it was not liable to install drainage where there was none and that Mr A, as landowner, had his own liabilities. However, it confirmed it would install further grips and that the kerb edging work would be placed on a list of priorities to be considered for funding for 2017/18. It acknowledged there had been some fault in how it had dealt with matters prior to February 2015 and that the wording of the letter it had sent Mr A in February 2015 had been misleading as it implied the work would be carried out at some time in the future when this had not been the intention of Council highway staff. It also accepted that Officer X had failed to respond to two emails Mr A had sent in November 2016 and that he should have referred Mr A’s complaint on to the Customer Relations Team so that it could have looked at his complaint as a Stage 2 complaint earlier. Staff have since been reminded to ensure the complaints procedure is followed.
  7. While we were looking into Mr A’s complaint, he made a further insurance claim in January 2017 which the insurers refused again a month later. Mr A did not receive the letter notifying him of the decision but a copy has now been sent to him.

Analysis

  1. In considering Mr A’s complaint at Stage 2 of its complaints procedure, the Council has already acknowledged some areas where it was at fault. However, it was made clear to Mr A that legally the Council is not responsible for installing drainage on the road alongside his property. It also made clear that the work it had done, and the work it had proposed, was a goodwill gesture made to help Mr A and not because it had a liability to do so.

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Agreed action

  1. In responding to my enquiries, the Council has confirmed that, since its March Stage 2 response, the budgets have now become known and it has been agreed the kerb edging works will be carried out. Mr A has been advised of this and that the works will likely take place around July. It has also confirmed that separate work to install additional grips will be carried out within the next 6 weeks.

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Final decision

  1. While there were some minor administrative failings, the Council has no liability to take action to install drainage on the road and, as it has now agreed to carry out some works as a goodwill gesture to help Mr A, we will not pursue the complaint any further.

Parts of the complaint that I did not investigate

  1. The restriction highlighted at paragraph 5 of the statement means that I have not looked at Mr A’s insurance claims against the Council because he had a court remedy which we would have reasonably expected him to have made use of. The time restriction highlighted at paragraph 6 means I have not investigated events prior to February 2015 and I have seen no grounds which would justify doing so now.

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Investigator's decision on behalf of the Ombudsman

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