Oldham Metropolitan Borough Council (20 003 605)

Category : Environment and regulation > Drainage

Decision : Upheld

Decision date : 20 Oct 2021

The Ombudsman's final decision:

Summary: Mr X complains that the Council failed to investigate and take action in relation to a drainage problem which has caused flooding and damage to his property. The Ombudsman has found fault with the Council’s communication, causing Mr X uncertainty about the priority given to his case. The Council will apologise for the injustice caused.

The complaint

  1. Mr X complains that the Council failed to investigate and take action in relation to a drainage problem which has caused flooding and damage to his property. Mr X says the lack of meaningful action has been stressful and unnecessary, with the risk of further damage to his property.

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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. 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)
  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 provided by Mr X and discussed the complaint with him. I made enquiries of the Council and considered its response.
  2. I sent Mr X and the Council a copy of my draft decision and invited their comments. I considered all the comments I received before reaching a final decision.

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What I found

  1. In December 2019 Mr X contacted the Council and said his property had suffered flooding from water which had run onto his land. The Council established the flooding was caused by drainage on adjacent private land. The Council was not responsible for this land but met with the landowner to resolve the issue. The Council says Mr X was kept informed throughout. Mr X disputes that he was kept informed however he became aware of action taken by the Council through a local councillor. Therefore, there is no significant injustice to Mr X to justify any further investigation into this part of his complaint.
  2. During its investigations the Council identified a secondary drainage issue affecting Mr X’s property. The Council carried out a site visit and surveys in February 2020 and attempted to clear any blockages within the gulley. This proved unsuccessful and a sandbag was placed over the gulley as a temporary measure to reduce the amount of water entering the gulley.
  3. Due to the COVID-19 pandemic and staff shortages, the Council took no further action until May 2020, when the case was reviewed by an engineer. A CCTV survey was carried out on 10 June 2020 and a further site visit was undertaken on 29 June 2020. Mr X was present during the visit.
  4. On 2 July 2020 the Council arranged for the removal of silt and/or debris to allow further investigations into the cause of the problem. Mr X was on holiday and the Council had no further availability until 20 July 2020. On 21 July 2020 the Council made a further temporary block to the gulley.
  5. A week later Mr X complained to the Council about the lack of action in resolving the flooding on his property. The Council responded to Mr X’s complaint and said the secondary issue with the gulley only came to light in February 2020. The Council explained that due to the pandemic and staff shortages it was unable to carry out site visits to investigate the root cause of the issue. It explained the action it had taken to date and said that Mr X had been kept informed throughout.
  6. On 3 September 2020 the Council permanently blocked the gulley (deleted the asset). The Council informed Mr X that no further investigations would be undertaken due to the possibility of damage to his property. Mr X was advised that his case had been referred to the Council’s risk and insurance team and was provided with their contact details. Mr X continued to contact the Council between February and June 2021 and each time he was advised to pursue a claim via his insurers.
  7. Mr X complained to the Ombudsman. He said the Council took too long to decide to permanently block the gulley (delete the asset) and that it could have acted sooner. He says the delay has caused him distress and inconvenience and he faced the risk of further damage to his property.

Analysis

  1. My role is to consider how the Council responded to the drainage issues and if it acted with fault. Where I find the Council acted with fault, I must decide what impact of that fault has been and what the Council should do to put it right.
  2. The Council responded promptly to the initial flooding issue and even though it was not responsible for the land, it ensured the issues were resolved.
  3. The Council has a risk matrix for assigning priority to such cases and says each case is discussed and reviewed on its own merits and prioritised based on risk. It is the Council’s view that the secondary issue had been present for some time but had been compounded by the initial flooding in December 2019. The Council decided the secondary issue was unlikely to lead to a flooding event that could cause internal flooding/damage. Mr X’s case was therefore considered to be low priority. The Council initially responded quickly to the secondary drainage issue by carrying out a site visit and surveys in February 2020 and temporarily blocked the gulley to reduce the amount of water entering the gulley lead.
  4. Due to COVID-19 pandemic the Council was unable to carry out further investigations to determine the cause of the blocked gulley. I do not find fault with the Council for delays outside of its control. The case was reviewed in May 2020 and the evidence shows that the Council continued to assess the issue with drainage until it blocked the gulley permanently (deleted the asset) four months later. I can understand Mr X feeling frustrated and concerned by the time taken to investigate the problem, but I cannot criticise the Council for the steps it took to identify the root cause of the drainage issue.
  5. While Mr X wanted the Council to act sooner, it was up to the Council to determine the priority assigned to this case. The Council decided that the secondary drainage issue did not pose a high flooding risk and it had to prioritise issues that presented a higher risk to the community. This was a decision the Council was entitled to make. The decision was not communicated to Mr X. This is fault. The injustice to Mr X is the uncertainty caused by not knowing the priority assigned to his case.

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Agreed action

  1. Within one month of my final decision the Council will apologise to Mr X for the fault and injustice identified in the paragraph above.

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Final decision

  1. I have found fault by the Council causing an injustice to Mr X. The Council has agreed to my recommendation. I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman

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