Summary: Mr X complained the Council failed to reduce the risk of surface flooding to his home after it was flooded in 2018. He said the lack of action contributed to his home flooding again in 2020. The flooding in 2020 was not due to fault by the Council. The Council was at fault when it failed to update Mr X with the result of drainage investigations in 2019 after agreeing to do so. It agreed to apologise to Mr X for the frustration and uncertainty that caused him.

The complaint

1. Mr X complained the Council failed to reduce the risk of surface flooding to his home between 2018 and 2020. Mr X said the Council failed to clear blocked drains and soakaways on his estate after his home flooded in 2018. He said this contributed to his home flooding again in 2020.
2. Mr X said the two flooding events have caused him significant financial loss, distress, and uncertainty about whether his home will flood again.

Back to top

The Ombudsman’s role and powers

3. 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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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)

Back to top

How I considered this complaint

6. I spoke to Mr X about his complaint and considered information he sent me.
7. I considered the Council’s response to my enquiry letter.
8. Mr X and the Council had the opportunity to comment on my draft decision. I considered comments before I made a final decision.

Back to top

What I found

Relevant law

9. Section 41 of the Highways Act 1980 imposes a duty on the Council to maintain highways at public expense. This includes any drainage which is part of that highway.
10. The Council is the Lead Local Flood Authority (LLFA) and the highway authority. As LLFA, the Council is responsible for managing local flood risks (risks of flooding from surface water, ground water and ordinary watercourses).
11. Section 19 of the Flood and Water management Act 2010 (the Act) sets out the LLFA’s duty to investigate and publish reports of flood incidents. Generally, these reports will include:
• Background information about the flooding location
• A summary of the flooding event
• Consideration of likely causes
• An indication of the roles and responsibilities of each risk management authority
• Recommendations arising to mitigate future risk of flooding.

The Council’s highway drainage systems

12. The Council’s website explains how it maintains and looks after its highway drainage system. It encourages people to report blocked drains or concerns of flooding on a road.
13. The website explains the Council’s approach to maintaining its 250,000 highway drains across the county. It says it carries out:
• Yearly inspections and cleansing of roadside drains throughout its key routes that link towns and villages.
• Twice yearly cleansing of roadside drains most vulnerable to flooding – which it identifies using enquiry data from historic reports from the public.
14. The Council also carries out reactive maintenance of drains. It says that if a drain is not on a planned programme, then it maintains them in response to reports of flooding. It will then risks assess the reported drains for highway safety and internal property flooding. It says it passes any identified defects in the drainage system to its drainage engineers for further assessment.

What happened

15. In 2018 Mr X’s home flooded following heavy rainfall which caused significant internal damage. The Council found the drains around Mr X’s home were clogged with dirt and weeds. Mr X said the Council had not cleaned the drains in over four years. The Council cleared the drains and Mr X said they began coping much better in heavy rain fall.
16. The Council carried out a Section 19 investigation and published its report in early 2019. The report found that the flooding in 2018 was due to an extreme weather event, recorded as a 1 in 66 years event. It found its existing drainage systems were not designed to cope with the volume of surface water which the event produced over a short period of time. The report showed that following the flooding, the Council cleansed the soakaway and drains on Mr X’s road. It also cleaned gullies opposite Mr X’s home and found them free flowing.
17. Mr X wrote to the Council and asked it to put the drains around his home on twice yearly cleansing in line with its policy, due to how vulnerable his house was to flooding. The Council wrote back to Mr X and said it had reviewed its systems and found it had received no reports of blocked drains on Mr X’s road prior to the flooding since 2015. The Council said there was no data to indicate Mr X’s drains required twice yearly cleansing. It advised Mr X and his neighbours to continue to report blocked drains. The Council said it had requested a full investigation of the existing drainage system, including a CCTV survey. It said once complete, its drainage manager would contact Mr X, however there is no evidence they did so.
18. Records show the Council carried out an inspection of the drains and soakaways on Mr X’s estate in June 2019. The survey report identified the soakaway near to Mr X’s home required a full clean as it was full of silt. Records show the Council carried out the clean in August 2019. The report shows the crew removed all silt and jetted clean the inlet and outlets.
19. In August 2020 Mr X’s home flooded again causing significant internal damage. Mr X complained to the Council and asked for a full investigation to ensure no more flooding would occur.
20. The Council responded to Mr X at stage 1 of its complaints’ procedure. The Council said it had reviewed data from the flood in August and said the rainfall was more intense than that of the flooding event in 2018. It said it was not possible to point to a single point of failure in the drainage system. The Council said its engineers had not identified any defects to the drains or soakaway. It said it is unlikely the flooding could have been prevented.
21. Mr X responded to the Council. He acknowledged that rare storms do happen but said on both occasions the soakaway outside his home was blocked. Mr X said if the Council kept both the drains and soakaways clear it would have a better chance of preventing flooding.
22. The Council responded to Mr X at stage 2 of its complaints’ procedure. It accepted a small number of drains were blocked after the 2020 flooding but said it had then cleaned them in mid-September. The Council said the intensity of the rainfall meant it was likely flooding would have occurred even if all the drains and soakaways throughout Mr X’s estate were completely clear. The Council said it would commission a specialist to carry out a review of the drainage system in 2021.
23. Mr X remained unhappy and complained to us. He said the Council had failed to fulfil it duties to reduce the risk of surface water flooding his home. Mr X sent us photographs of blocked drains on his estate which had not been cleared for some time.

The Council’s response to our enquiries

24. The Council sent us a copy of a draft Section 19 report into the flooding event of August 2020. The report shows a total of 40mm of rain fell in a 45-minute period and 19.6mm of that fell in a 15-minute period. The report said the average rainfall for August is 56mm. The report concluded the storm was a 1 in 157-years event.
25. The Council said the intensive nature of the storm caused significant overland flows. It said as the volume of water increased the highway drainage system and surface water sewer systems became overwhelmed resulting in flooding to properties, including Mr X’s. The Council said the drainage system was not designed for rainfall of that intensity. It said the flood water did drain away which indicated the drainage systems were in operational working order.
26. The Council said the photographs Mr X provided showing blocked drains were located on a road some distance from Mr X’s house. It said those blockages would not have impacted on the drains on Mr X’s road.
27. The Council said both the 2018 and 2020 flooding incidents occurred in very heavy rain and therefore it does not consider it could have prevented them. The Council said it had inspected the soakaways around Mr X’s house as recently as May 2021 and said they are operating as expected and it did not consider it needed to take additional action. It said however it had now placed Mr X’s road on a twice yearly maintenance regime while it considered future drainage developments.

My findings

28. Only a court can decide whether the Council was negligent or liable for the damage caused to Mr X’s home when his house flooded. Therefore, we can only look at whether the Council considered the relevant law, policy and information available to it in deciding what action to take following the initial flooding event in 2018.
29. The law puts a duty on councils to maintain the highway (which includes drains). It does not however set out a standard or frequency of maintenance. The Council has its own policy and criteria about how it responds to reports of flooding and blocked drains. This is not fault.
30. Following the flooding event in 2018 the Council considered Mr X’s request to put the drains on his road on a twice-yearly cleansing regime. The Council considered historic reports of blocked drains, the 2018 Section 19 investigation and decided the drains did not meet the criteria for a twice-yearly cleanse. The Council appropriately considered relevant information, evidence and its own policy in making its decision. There was no fault in how it made the decision, so I cannot question the decision reached.
31. After the 2018 Section 19 investigation, the Council carried out a CCTV survey of the drains and soakaways on Mr X’s road. The Council told Mr X it would update him following the CCTV investigation. There is no evidence it did so which was fault and caused Mr X frustration and uncertainty. However, records show in August 2019, the Council did clean the soakaway nearest Mr X’s home following the CCTV investigation.
32. The Council has acknowledged that a small number of drains on Mr X’s road and estate were blocked following the 2020 flooding event. Mr X said had these drains been clear then the flooding may not have occurred. However, the Section 19 investigations both concluded the flooding incidents in 2018 and 2020 were caused by intense rainfall that the drainage system was not designed to cope with. The Council considered the content of the Section 19 investigation and concluded the flooding incidents were outside its reasonable control and it could not have prevented them. Mr X has strong views about whether the Council could have prevented the 2020 flooding event. However, the Ombudsman is not an appeal body. We cannot substitute our judgement for that of the Council and we cannot criticise a council’s decision unless there was fault in the way it made its decision. There was no fault in the way the Council reached its decision so we cannot question it.
33. Mr X is worried about future flooding at his property. The Council inspected the soakaway nearest Mr X in May 2021 and concluded it is operating as expected. It now has Mr X’s and the surrounding roads on a twice-yearly maintenance regime and is considering future drainage improvements.

Back to top

Agreed action

34. Within one month of the final decision the Council agreed to write to Mr X and apologise for the frustration and uncertainty caused after it failed to update him as agreed, following the 2019 drain investigation

Back to top

Final decision

35. I completed my investigation. I found fault and the Council agreed to my recommendation to remedy the injustice caused by that fault.

Back to top

Investigator's decision on behalf of the Ombudsman