The Ombudsman's final decision:
Summary: Mr and Mrs D complain the Council failed to properly maintain drains near their home. The Ombudsman has found that overall the Council acted in line with procedures. However, there is one instance of delay and the Ombudsman has completed the investigation and upheld the complaint because the Council agreed with the recommended actions.
- The complainants (whom I refer to as Mr and Mrs D) say the Council has failed to clean and clear drains near their home. They also say the Council should ensure trees adjacent to the highway are maintained to prevent foliage and debris clogging drains.
What I have investigated
- Mr and Mrs D refer to events going back several years. I have looked at what happened from June 2017 onwards.
The Ombudsman’s role and powers
- The Ombudsman cannot investigate late complaints unless he decides there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsman about something a council has done. (Local Government Act 1974, sections 26B and 34D)
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. He 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, he may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
- 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 spoken to Mrs D and considered the information she provided. I asked the Council questions and examined its response including maps of the area showing which drains it is responsible for.
- I also contacted a Councillor who had previously assisted Mr and Mrs D. She did not provide any new evidence such as maps that showed different ownership of the drains.
- I have shared my draft decision with the Council and Mr and Mrs D.
What I found
- Mr and Mrs D reported blocked drains to the Council on 1 December 2017. The Council told them the drains were not on the highway and so would not attend. The Council has told me this was incorrect. On 19 January 2018 Mr and Mrs D reported to the Council that trees adjacent to the highway were large and could fall down. The Council looked into the matter and concluded the trees were on a private land and were not a potential danger to highway users.
- On 30 April, the Council attended the site, a delayed response to the December 2017 report, and cleared/ jetted five blocked drains: two on the highway and three on private land. In June, a Council Engineer attended a site meeting arranged by Mr and Mrs D’s local Councillor. The Engineer advised the Council was responsible for drains on the highway but not those on private land. In July, the Council visited the site and cleared blocked gullies.
What should have happened
- The Council is responsible for the maintenance of drains on the highway. It has no duty to clear drains on private land.
- The Council clears drains/ gullies between 12 and 24 months depending on how quickly the drain silts up. If a resident reports a blocked drain on the highway the Council will attend to clear the blockage.
- The Council will not take action over trees on private land which naturally shed foliage onto the highway as this is not considered a legal nuisance. It can require the land owner to cut back trees if they are determined to be a potential danger to highway users.
Was there fault by the Council
- Mr and Mrs D complain the Council is not regularly clearing the drains around their home. The Council is only responsible for maintaining drains on the highway which means it has no duty to clear some of the drains near Mr and Mrs D which sit on private land. I understand Mr and Mrs D dispute the ownership of the drains and feel the Council should maintain more of them. However, I have seen no evidence to show the Council’s view is incorrect.
- The Council’s records show it has attended reports of blockages and cleared the drains in 2018. There is some fault by the Council. Mr and Mrs D reported blocked drains in December 2017 and the Council incorrectly told them it would not attend because the drains were all on private land. The Council now acknowledges this was wrong because some of the drains were on the highway. The Council delayed responding to this report by over four months which is not acceptable. I do note that when it visited the site in April 2018 it exercised discretion to clean the private drains as well as the highways drains.
- Mr and Mrs D also say the Council should cut back trees near the highway because the foliage and debris from them clog the drains. The Council cannot require a private land owner to cut back trees because of foliage dropping onto the road. It can only take action if it considers the trees are likely to cause injury to highway users. In this case the Council has viewed the trees and concluded they do not pose any risk at present. I see no fault by the Council and cannot question the validity of its decision because it has acted in line with procedures.
Did the fault cause an injustice
- The Council misinformed Mr and Mrs D in December 2017 and then delayed by over four months attending to the drains. This meant Mr and Mrs D had to wait longer than is reasonable to receive a service. However, I also take account of the Council clearing private drains during the work which it was not required to do.
- I asked the Council to consider:
- Sending a letter of apology to Mr and Mrs D for the delay within four weeks of this case closing;
- Explain to the Ombudsman what improvements have been made to ensure the mistake in this case is not repeated in respect of reports about drains.
- I have completed the investigation and upheld the complaint.
Parts of the complaint that I did not investigate
- I have not looked at events prior to June 2017 for the reason set out above.
Investigator's decision on behalf of the Ombudsman