The Ombudsman's final decision:
Summary: Mr X complained the Council failed to properly consider his reports about a blocked highway drainage gully. We found there was fault by the Council which warranted a remedy.
- Mr X complains the Council failed to properly respond to his reports about a blocked highway gully outside his home. The blocked gully causes water to build up against the wall of his house. It has created mould on furniture and walls and necessitated internal works to manage damp in his property.
The Ombudsman’s role and powers
- 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)
- 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 spoke to Mr X and considered the information he provided. I asked the Council for information and considered its response to the complaint.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- Mr X and his wife are in their seventies. Mr X told us that due to blockages and problems with highway drainage, water had been building up on the road adjacent to his house. He told us as a result water was getting into/under his house through an air brick.
- Mr X explained the issue had caused damp problems in his home requiring remedial plaster work and the mould and damp had damaged interior furnishings.
- The Council told us it was first aware of the blocked gully in 2014. The Council attempted to address the blockage by rodding and digging out the blockage but this failed. I understand the Council installed sandbags along Mr X’s wall prevent water seeping into his air brick at this time. These were replaced twice when they became damaged. Once in 2017 and once in 2018.
- In December 2017 the Council noted on its records the situation was distressing for Mr X and his wife. The Council noted Mrs X had a serious illness and Mr X was having to care for her as well as going out frequently to brush water away.
Mr X’s complaint
- Mr X complained to the Council in September 2018 about the situation. His letter was headed “Complaint”. Mr X stated the Council had done nothing to rectify the problem and he asked the Council to get the problem solved. He stated the problems with drainage had meant living under the risk of flooding for some years. He set out details of his wife’s ill health and stated the problem was stressful and upsetting. Mr X stated the problem was a worry on a daily basis and had caused a huge problem in terms of his house insurance.
- The Council acknowledged his letter on 2 October and stated a response would be provided in 14 days.
- Mr X chased for a response on 25 October.
- On 30 October the Council wrote to Mr X. It noted the Local Highways Manager met with him in September and the Council planned to re-route the drainage system to another part of the road. It stated the work would most likely not happen this side of winter because other schemes were already planned. It asked Mr X for some evidence of the flooding of his house. The letter does not appear to have been a formal response to Mr X’s complaint, as it did not explain how Mr X could escalate the matter if he was unhappy with the Council’s reply.
- It is unclear if Mr X responded to this letter.
- In May 2019 Mr X raised a further complaint. He reiterated the Council had still failed to rectify the blocked drain which had now left him with the threat of flooding for some considerable time.
- The Council responded to the complaint on 23 May. The Council explained a contractor had surveyed the drain earlier in 2019. They identified two options; The first was to connect to a nearby Wessex Water drainage system. The second was to excavate the lane in which he lived and connect to the County Council’s drainage systems. The Council stated it now worked with a different contractor and the new contract had resulted in unforeseen delays. The Council stated the new contractor was tasked with progressing option one with Wessex Water. It stated it would update him further once it had an outcome. The letter stated if Mr X was not satisfied with its response, he could ask for his complaint to be escalated.
- In August 2019 Mr X hand delivered a letter to the Council asking for his complaint to be escalated. The Council told us the complaints team appeared not to have received this request. However, the Council was later able to provide a date stamped copy of Mr X’s letter, from 27 August 2019. In the letter Mr X set out concerns about his insurance costs and stated he had to install dehumidifiers several years ago. It appears that the Council did not respond to it.
- The Council told Mr X in May 2019 it would be contacting Wessex Water with a proposal to address the problem. An application form was completed in June 2019. However, it was not sent until August 2019. The Council stated due to a mis-communication, there was a further delay of a month in the application being made to Wessex Water between August 2019 and September 2019.
- On 25 October, after Mr X contacted the Ombudsman, the Council wrote to Mr X stating it was waiting for a decision from Wessex Water. The Council stated it was at the mercy of Wessex Water and could not take further action until it had their response. As a result, it did not consider it would achieve anything to consider the complaint further at Stage Two of the complaints process.
- In November Mr X wrote to the Council to explain that flood water was regularly washed onto the walls of his house by passing cars. He said they had been suffering for 7-8 years with this situation. He explained their health issues and stated he had to purchase dehumidifier units to help deal with mould on the walls and furniture. Mr X explained they had planned to move but this was impossible with the current flooding issue and the sandbags adjacent to his house.
- A council officer visited Mr X at the end of 2019. In January 2020 the Council installed a tarmac bund around the sandbags as an interim solution to deflect the water from Mr X’s wall. It wrote to Mr X to say that unfortunately, after a very long wait, Wessex Water had rejected the Council’s application to connect to their sewer. The Council explained some of the difficulties in fixing the problem. It set out some proposed work that the drainage team had been instructed to pursue.
- The Council told us the tarmac bund appeared to have been effective as no water was now getting through the air brick into Mr X’s property. Mr X told us it was not entirely effective, as cars splashed standing water on the highway over it onto the sandbags and against his property.
- The Council explained, as Mr X’s property was the only one affected, and road safety was not a concern, initially the council did not prioritise a solution. It stated when resources allowed the drainage team were asked to investigate and propose a solution.
- The Council stated it had recently decided on a solution. In the ‘long term’ the Council intended to completely replace the highway. This would include resurfacing the carriageway to take water away from Mr X’s property and into the new concrete drainage channels. They would also install new gullies and a new connection to the existing drainage system. The cost of the work was around £30,000. Because the cost was significant, the work was not a priority for 2020/21, and as yet, funding for 2021/22 had not been agreed. As a result, remains unclear when the Council will remedy the problem.
Highways Act 1980
- The duty to maintain highways includes maintenance of features of a highway relating to flood risk. Highway Authorities have powers under the Highways Act 1980 to lay new drains, erect barriers, cleanse existing drains or fill in ditches in order to drain roads or prevent surface water flowing onto roads.
Council Inspection Manual
- The Council’s inspection manual from 2019 sets out the timescales for resolving safety defects on the highway. It relies on a risk assessment to determine how quickly repairs should be carried out. In terms of floods the policy says its response will be prioritised for strategic or priority routes. Defects that cannot be made safe immediately will be referred for work and resources to be prioritised.
Well Maintained Highways by the UK Roads Board
- The Council’s manual references guidance by the Roads Liaison Group in their document “Well-maintained Highways, Code of Practice for Highways Maintenance Management”.
- Paragraph 10.7.8 states “Where despite effective maintenance operations, flooding of the highway occurs, with implications for safety or serviceability, relevant warning signs should be placed in position as quickly as possible and users advised through local media. The cause of the flooding should be determined and given prompt attention, in order to restore the highway to a reasonable condition. If it is subsequently determined that the flooding is attributable to deficiencies in infrastructure or the maintenance regime, given the nature of the weather conditions under which it occurred, then action to permanently relieve the problem should be considered urgently. If the event is attributable to the actions of a third party, the matter should be taken up with them at the earliest opportunity.”
Was there fault by the Council
- The Council’s responses to Mr X’s complaints in 2018 and 2019 were poor. The Council failed to deal with a clear complaint from Mr X through its complaints process in September/October 2018. It did not make it clear he could escalate the matter if he was dissatisfied.
- The Council did send a formal response to Mr X’s May 2019 complaint and it explained the escalation process. However, when Mr X asked for the complaint to be considered further at the next stage in August, the request was not actioned and it appears no response was provided.
- The way the Council handled Mr X’s complaints represents fault.
- I recognise when the Council tried to clear the blocked gully as an ordinary blockage by rodding and cleaning this was not possible. As a result, there was a need to consider much more significant work. I also recognise that remedial work like this needs to be prioritised and planned in. Strategic or fast, busy roads will be prioritised above smaller roads, like that which Mr X lives on. However, the Council has been aware of the need for significant work to be done to remedy the flooding of the road alongside Mr X’s property since its investigations in 2014. The length of time that the problem has persisted is excessive here. In addition, there were avoidable delays in liaising with Wessex Water about potentially connecting drains to the water company’s sewer to resolve the problem.
- The Highway Authority is responsible for the highway drainage systems that cause standing water alongside Mr X’s property. The time taken to resolve the known problem with drainage was fault by the Council.
- In addition, I am not persuaded the Council properly took account of the impact to Mr and Mrs X when considering its response in this case. The Council installed sandbags along Mr X’s wall, to address an immediate issue of water ingress to his air brick. Recently, it added a tarmac bund. On one occasion the Council asked for details of the flooding of Mr X’s property.
- However, Mr and Mrs X are elderly. The Council noted in 2017 that Mrs X was suffering with serious ill health. Mr X’s complaints in 2018 and 2019 made this clear again. He also explained they had difficulties with house insurance and with damp (Mr X explained they had to install dehumidifiers). I have seen little evidence that the Council properly considered these issues. I would have expected the Council to take Mr and Mrs X’s personal circumstances and the problems they reported with their property into account when deciding on the priority to give to the required work.
- I would also have expected the Council to refer the matter to its insurers as Mr X had made it clear that the damp problems, need for dehumidifiers and problems with their insurance costs were as a result of the standing water alongside their house. Mr X contends the damage was caused by a blocked highway gully for which the Council was responsible.
- Given the problem was first established in 2014, it is concerning that there remains no clear understanding of when the problem will be addressed. The Council stated it will not be until 2021/22 at the earliest, and it gives no commitment to doing the work then. This perpetuates, what seem to be difficult living conditions for Mr and Mrs X in the meantime.
- Within four weeks of my final decision the Council agreed to:
- Apologise to Mr and Mrs X for the delay in resolving the problem and for the issues we identified with the Council’s complaint handling. It should pay them £300 to recognise the time trouble and distress the matter has caused.
- Write to Mr and Mrs X to invite them to make claim against the Council’s insurers to address any costs they have incurred at their property since 2014, caused by the highway drainage issue.
- There was fault by the Council.
Investigator's decision on behalf of the Ombudsman