Essex County Council (19 020 584)

Category : Environment and regulation > Drainage

Decision : Upheld

Decision date : 11 Nov 2020

The Ombudsman's final decision:

Summary: Mr C complained the Council unnecessarily removed his hedge to complete drainage works. He also complained about the Council’s complaints handling. The Ombudsman finds the Council was not at fault for removing Mr C's hedge. The Council was at fault for how it responded to Mr C’s complaint, but this did not cause him a significant injustice.

The complaint

  1. Mr C complained the Council unnecessarily removed his hedge to complete drainage works. He says he was initially told by the Council it could not reline the existing drainage and it had to install new pipes. He says when the Council eventually completed the works, it ended up relining the existing drainage and it unnecessarily removed his hedge in the process.
  2. Mr C further complains the Council sent the response to his complaint from a do not reply email address and gave him no option to refer his complaint to stage two of its complaints process.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot question whether the Council’s decision is right or wrong simply because the complainant disagrees with it. We must consider if there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. 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)

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How I considered this complaint

  1. I considered the information Mr C submitted with his complaint. I made written enquiries of the Council and considered the information it provided in response.
  2. I shared my draft decision with Mr C and the Council and I invited them to comment on it.

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What I found

  1. In January 2019, the Council wrote to Mr C and said it had a carried out a CCTV survey of the drains on his road because of carriageway flooding issues. It identified some of the pipework outside of Mr C’s house had been obstructed by small tree roots. To overcome the problems with the drain it proposed installing new pipes across the front of his house. It said it would be best to remove the hedge outside of his house and plant a new one after it had completed the works. It asked Mr C for his permission to remove the hedge.
  2. In March 2019, the Council emailed Mr C and sent him a drawing of the proposed works. It confirmed it would remove his hedge, replace the drain, and replant a new hedge when it had completed the works.
  3. In February 2020, the works began. The Council officer requested for a cable avoidance survey to be carried out so it could inspect the area where the new pipes were going to be installed. The Council’s officers removed the hedge so they could complete the survey. After the survey was completed, the officer decided that installing new pipes was not appropriate because of the proximity to an overhead electricity pole. The officer therefore decided it was best to reline the existing drains. Drain relining is a method of repairing damaged drainage pipes by fixing a new pipe into an existing damaged pipe.
  4. Mr C complained to the Council. He said the Council originally told him it could not reline the existing drainage. However, it had now done so and removed his hedge unnecessarily. He provided it with before and after photographs of the works.
  5. The Council responded to Mr C’s complaint. It explained a cable avoidance survey was carried out to detect underground services. It said it was not possible to carry out the survey without removing the hedge as it was directly above the area where it needed to complete the works. It said when it completed the survey, the sewer underneath the hedge displayed only minor damage and so installing new drainage would not have had any benefit. The Council referred Mr C to the Ombudsman if he was not happy with its response.

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Analysis

  1. I do not find fault with the Council’s actions. The Council initially told Mr C it would install new pipes and would have to remove his hedge in the process. Mr C says he suggested to the Council it could reline the new pipes rather than installing new ones and he was told it would not be possible. However, I have not been provided with any evidence of this. Before starting the works, the Council officer requested for a cable avoidance survey to be completed. The Council says it had to remove the hedge to complete the survey fully. I have read the cable avoidance survey report and looked at the photographs of the area. I accept the removal of Mr C’s hedge allowed the officer to conduct the survey fully and to identify pipes that would not have been possible if the hedge remained in place. The result from the survey indicated relining the pipes was the best option because of the proximity to an overhead pole. Also, there was only minor damage to the sewer under the hedge and so installing new drainage would not have had any benefit.
  2. I appreciate Mr C disagrees with the Council and says it did not need to remove the hedge to conduct a cable avoidance survey. However, the Ombudsman can only question a decision or process if it was carried out with fault. We are not an appeals body. There is no evidence of fault in the process followed in this case and so I am satisfied the Council acted properly.
  3. In its response to my enquiries, the Council says it has recently inspected Mr C’s replacement hedge and it has not become established. Therefore, it will discuss the matter with Mr C and will arrange for a replacement hedge to be replanted as soon possible if he agrees to it.
  4. Mr C’s also complained the Council’s complaint response came from a do not reply email address and gave him no option to refer it to stage two of its complaints process. The Council says its aim at stage one of the complaints process is to address all issues raised within the initial response sent to the complainant. In circumstances where it has nothing further to add, the Council says the best option for the complainant would be refer to the Ombudsman for an independent view which is what happened in Mr C’s case. The Council adds when a customer is unhappy with the response received and contacts it further, it will always review the correspondence to ensure full consideration is given to any additional concerns.
  5. The Council’s corporate complaints policy says if someone is unhappy with the outcome of their complaint, they can contact the Council to discuss why they are dissatisfied. Alternatively, they can contact the Ombudsman. In the Council’s response to Mr C’s complaint, it said if he remained dissatisfied with the response, he could go to the Ombudsman. The Council did not give Mr C the opportunity to contact it further as is stated in its complaints policy. The Council now says it had nothing further to add to its response, which is why it referred him to the Ombudsman. However, the Council should have made this clear in its response to Mr C and it did not do so. This is fault.
  6. While I have identified fault in the Council’s complaints handling, I do not consider this has caused Mr C a significant injustice. The Council does not uphold Mr C’s complaint. Therefore, Mr C would have always referred his complaint to the Ombudsman for an independent review.

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Final decision

  1. The Council was at fault in how it responded to Mr C’s complaint. However, this did not cause him a significant injustice and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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