The Ombudsman's final decision:
Summary: Mrs B complained about the Council’s actions in repairing broken pipes taking highways water under her garden. It delayed in dealing with her complaint, was unclear about the works it intended to do and the work it actually did. It then failed to adequately inspect the work or investigate Mrs B’s complaint that the works had not been done. This caused Mrs B considerable distress, time and trouble and avoidable flooding to her garden.
- Mrs B complains that Cumbria County Council (the Council) failed to carry out effective work to drainage pipes running underneath her garden, which were still leaking, rendering a large part of her garden unusable. The Council misled her as to the nature of the work it was going to carry out and whether the two old leaking pipes were going to be removed. It also delayed in responding to her complaint.
The Ombudsman’s role and powers
- 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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)
- 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)
How I considered this complaint
- I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. I have written to Mrs B and the Council with my draft decision and considered their comments.
What I found
- Mrs B complained to the Ombudsman in 2011 about delay by the Council in repairing a pipe running under her garden which took highway water off the road. The pipe was damaged and caused flooding in her garden.
- We upheld her complaint. The Council agreed to repair the pipe, apologise to Mrs B and pay her £250. The Council said that it had completed the work by 16 October 2012. We have no record of the work that was done.
- Mrs B complained again to the Ombudsman in November 2017. She said her garden had never recovered from the waterlogging problem identified in the previous complaint. By September 2016 she said it was apparent that whatever repairs had been done in 2012, they had failed and water was again flooding their garden from the pipes. She said over half their garden was affected including the drainage field where their septic tank was situated.
- She complained to the Council. In October 2016, the Council carried out a CCTV survey of the drainage system. which showed that one of the pipes was leaking up to 80% of the water flowing through it. The Council suggested it was her responsibility to resolve. Mrs B questioned this and asked if it was possible to divert the pipe so instead of running under her garden it could run along the boundary and connect to an existing drain in the highway.
- After chasing the matter via her local councillor, an officer responded in February 2017 and offered to inspect the site. He visited in March 2017. Mrs B says he did not inspect the site but said that the Council now had funding to fix the problem. He did not mention installing a new pipe. Following this meeting Mrs B chased him up on two occasions asking for a copy of the CCTV report and for plans of the proposed work.
- Mrs B says that she received a copy of the CCTV report in May 2017. In July 2017 another officer visited. Mrs B says at this meeting the officer was reluctant to dig up the old pipes as they were buried quite deeply. Mrs B repeated that she wanted the pipes replacing.
- In August 2017 the officer who visited in July 2017 sent her a diagram showing the proposed work. This showed one new 450 mm pipe being installed along the highway and through Mrs B’s garden. The pipe was marked as ‘renew’ and there was no mention of the old pipe nearest to Mrs B’s property, ie whether it was being replaced or not. The diagram also referred to the pipe furthest away from her property being ‘abandoned’.
- In October 2017 the Council carried out work to the pipes. It did not remove the two old pipes but laid the new pipe above them. It said to Mrs B that the new pipe was taking all the highway water and there was no highway water running through the old pipes. In order to lay the pipes Mrs B said the Council removed a large number of trees and destroyed her screening from the road,
- Mrs B believed the old damaged pipes were still carrying water across her land and causing waterlogging. She could not replant any trees or use the land as it was so unstable. The Council denied this was the case.
- We referred the complaint back to the Council and asked it to investigate the matter through its complaints procedure. In April 2018 the Council said the complaint had not been through its procedure. It said an officer had tried to contact Mrs B by telephone three times in March 2018. Mrs B said she had received no messages or missed calls. We decided to investigate.
- In response to my enquiries the Council said that in August 2017, prior to the works taking place, the Council had undertaken a second CCTV survey of the drainage system. It enclosed copies of the video footage from this and the accompanying report. From this information, the Council concluded that there were three pipes running across Mrs B’s land: The one furthest away from her property (Pipe Z) was in very poor condition and appeared to be blocked. The middle one (Pipe X) was not surveyed as it was going to be diverted and the third one nearest her property (Pipe Y) was operational; ie water was running through it.
- The Council further explained that during the works in October 2017, Pipe Y was removed and replaced with a new 450 m pipe and all highway water goes through this pipe. Pipe Z, which it described as an old land drain was blocked off at source ‘as far as highway drainage’ was concerned and no highway water went down it. It also said two officers had driven past the property and did not see any flooding on the highway or down Mrs B’s drive. They did not go onto her land but could not see any signs that water was leaking from the new pipe.
- Mrs B provided further information disputing the Council’s version of events. She had bought some fluorescent water dye and poured it down the drains connecting to Pipes Z and Y. She took video footage showing the water coming out of both pipes; one of which the Council said it had blocked off and the other removed.
- She said the Council misled them as she believed the old pipes would be removed and replaced with a new pipe. She would never have agreed to an additional pipe being laid across her land. She says after the work had been done, two council engineers visited and agreed that water was still running through the old pipes. She provided a recording of the conversation.
- In light of the new information provided by Mrs B, I went back to the Council for further comment. It said it was concerned that water was still discharging out of the old system. Two officers visited the site and found that the original work had not been completed as requested: the old system had not been blocked off, so highway water was still discharging through the old pipes. It fully accepted that the work had not been completed to the specification requested and it should have been picked up following completion of the work.
- In early September 2018 it carried out further work to rectify the situation: Pipes Z and X were blocked off at source within the highway and left in place. The Council also installed a new pipe in the highway to ensure all highway water was diverted into the new 450 mm pipe. The Council also offered to carry out a third CCTV survey to establish the final state of the pipes.
- Mrs B says that she no longer wants the old pipes removing as this would be too disruptive. However, she does want the old pipes blocked off with concrete at the point where they cross her land, as a permanent solution. She has also requested that the Council considers relaying the new pipe at a greater depth. Currently it is only two feet below the surface which greatly limits the possibility of doing any work to improve the garden.
- It is unclear what work was carried out in 2012 as a result of the previous complaint and whether it resolved the problem for a period of time. Mrs B did not complain again to the Council until September 2016 and to the Ombudsman until November 2017. I have limited my investigation to the events from September 2016 because I consider it would have been reasonable for Mrs B to have complained earlier about the works carried out in 2012.
- Given the history to the case I consider the Council took too long to respond to Mrs B’s complaint in September 2016. She had to chase several times and involve her local councillor before an officer visited, six months later. It took a further three months for the Council to inspect the site and propose rectification works. This was fault.
- The Council has been unclear about, both the work it intended to do and what it actually did. The plan sent to Mrs B in August 2017 was confusing as it did not accurately show all the pipes and did not clarify whether pipes were being removed, replaced or blocked off. This was fault. I have also not seen clear instructions as to what the Council asked its contractors to do. It appears a new pipe was installed above the old leaking pipes, none of which were removed or blocked off.
- The Council also removed many more trees than Mrs B was expecting, exacerbating the impact on her garden.
- Despite Mrs B pointing out, as soon as the work had been completed, that the old pipes were still taking water, the Council insisted she was wrong and they were not taking any highway water. I am unclear how the Council could have reached this view as it did not actually inspect the work after it was done. This was fault.
- The Council then failed to investigate her complaint despite our request, causing a further six-month delay. This was fault.
- As a result of our investigation and Mrs B’s persistence in carrying out her own tests, the Council has finally accepted that it never did the work as originally intended and the old leaking pipes had continued to taking highway water for a further year.
- The delay and failure to investigate Mrs B’s complaint have caused her significant frustration and distress. She has taken much time and trouble in proving her point and her garden has been subjected to additional waterlogging which could have been avoided.
- The Council has undertaken further works which appear to have stopped highways water flowing through the broken pipes under her garden.
- The Council offered to carry out a third CCTV survey. I consider this would be a good idea to establish the final situation with the pipes. The Council proposes using the company which carried out the survey in August 2017 and I have no objection to that proposal. I recommended that the survey is carried out within one month of the date of the decision and the report sent to Mrs B as soon as possible after that. The Council has agreed to this and has also said Mrs and Mr B can be present when the survey is done.
- Mrs B has requested the Council block the old pipes with concrete rather than just a bung and re-lay the 450 mm pipe at a lower level. I asked the Council to consider these requests within one month and let me and Mrs B know if they are viable options. The Council has responded, saying the bungs are specifically designed for blocking off pipes and are as effective as concrete. In respect of re-laying the pipe it considers this would be difficult as there would be insufficient level to allow the water to discharge into the beck. It also considers it would be very disruptive to the garden and difficult to manage the necessary machinery. I am satisfied the Council has considered these issues and given reasons why they would not be viable.
- In recognition of the distress, time and trouble this matter has caused Mrs B over the past two years, I asked the Council to pay her £1300. The Council has agreed to this payment.
- I consider this is a fair and reasonable way of resolving the complaint, and I have completed my investigation on this basis
Investigator's decision on behalf of the Ombudsman