Summary: There was no fault in how the Council considered taking action over a flooded ditch. Although the cause of the flooding remains uncertain, it is for the Council to decide its criteria for prioritising such matters. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Mrs B.
2. Mrs B complains the Council has not prioritised investigating and resolving a flooded ditch, despite her concerns it is causing damage to her property.

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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. 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

5. I reviewed Mrs B’s correspondence with the Council.

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What I found

6. Mrs B’s home is a converted barn in a rural area. There is a road a few metres to the front of her property, flanked on either side by drainage ditches.
7. Mrs B says she noticed the ditches were full of water in October 2020. In November, she reported this to the Council, and asked it to visit and investigate. A Council officer then visited the site.
8. On 2 December, the Council wrote to Mrs B. It said its assessment was that remedial action was not currently necessary, but it would monitor the situation and consider taking action if it deteriorated. The Council signposted Mrs B to its published criteria for prioritising highway maintenance work.
9. Mrs B submitted a complaint to the Council on the same day. She said a blocked drain was causing the water to rise in the ditches on both sides of the road, and that the Council officer who had visited had simply driven slowly past, without speaking to her or making a close inspection.
10. Mrs B highlighted her concerns about possible damage to the foundations of her property and those of her neighbours, and said the near-side ditch was supposed to drain into the ditch on the far side of the road, but this was being prevented by a blockage.
11. On 6 January 2021, prompted by Mrs B’s complaint, the Council visited again and pumped the water out of the ditch. Mrs B says this revealed an inlet pipe, which was the source of the water, and that the ditch filled back up again in about an hour.
12. The Council responded to Mrs B’s complaint on 21 January.
13. The Council explained the ditch was there to drain water from the road. During the first visit, the officer had judged whether remedial action was necessary, but, in line with the Council’s published criteria, no action was required because there had been no flooding of the road. The officer had also noted there was no evidence of internal flooding of properties.
14. The Council acknowledged Mrs B had wished to speak to the officer, but explained this was not always possible because of the volume of work it was managing. It said the officer would have spent longer at the site if they had observed either highway or property flooding.
15. The Council said that, after receiving Mrs B’s complaint, it decided to investigate further in case the problems had worsened, and attended again to empty the ditch. But the Council said it could find no pipe, faulty or otherwise, in the ditch, and so the reason for the rising waters level was unclear.
16. It theorised the ditches were in fact designed as soakaways, rather than traditional drainage; and that repeated heavy wet weather had saturated the ground, meaning the water could no longer soak in. Either way, it was not possible to fix the problem during this visit.
17. The Council explained it had a long list of known flooding sites but only limited resources to deal with them. It said it assessed each site against a list of priorities, which were:

• there is a risk to life because of flooding;
• a property had experienced internal flooding on more than one occasion;
• five properties had experienced internal flooding on the same, single occasion;
• a major transport route had been closed for more than ten hours because of flooding;
• flooding had affected critical infrastructure, such as a hospital, school or fire station; and
• other highway flooding depending on risk and severity.

18. The Council said it would shortly undertake an assessment of the site in question against these criteria, and decide whether to take action, but it could not say what the outcome would be at this stage. It acknowledged Mrs B may be dissatisfied with this response, and offered its sympathy, but asked her to recognise the challenges the Council faced in dealing with flooding.
19. Mrs B wrote to the Council again on 31 January and 1 February. She acknowledged the steps the Council had taken so far to investigate, and that it needed to prioritise its resources. But she highlighted again her concerns about the possible damage the water was doing to her property, the foundations of which were centuries old and very close to the ditch.
20. Mrs B pointed out it would be less costly to address the issue now than to fix damage in the future. She asked the Council to expedite its work and invited it to visit again, to see the evidence the water was affecting her property.
21. The Council responded on 2 February to say it considered it had properly addressed her complaint, and referred her to the Ombudsman.
22. Mrs B complained to the Ombudsman on 8 February.

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Analysis

23. The Ombudsman’s role is to review councils’ adherence to procedure when making decisions. If a council has followed the appropriate procedure, considered all relevant information, and given clear and cogent reasons for its decision, we generally cannot criticise it. We do not provide a route of appeal against councils’ decisions, nor make decisions on their behalf, and we cannot uphold a complaint simply because someone does not agree with what a council has done.
24. There is evidently some uncertainty why the water in the ditches is failing to drain away. Mrs B believes there is a blockage in an outlet pipe somewhere, but the Council’s investigation so far has failed to identify any such pipe. I note the Council has offered an alternative theory, which is that ditches were actually designed as soakaways – in other words, that they collect the water and allow it to soak into the ground, rather than feeding it into a drainage system – but which cannot function because the ground is already saturated.
25. But, either way, the Council gave a clear explanation of the criteria under which it will prioritise work to address flooding. It also said it will assess the site under these criteria, and decide whether to list it for further work.
26. There was no indication of the outcome of the Council’s assessment, but it has now confirmed to me that it has placed the site in the “bottom 30 percentile of … known highways flooding locations”. This means it is unlikely it will allocate funding to address it in the near future, although it would re-evaluate if the situation deteriorated.
27. I acknowledge Mrs B will find this disappointing. However, none of the Council’s priority criteria appears to apply in this case – for example, there is no suggestion the ditch has caused internal flooding at her property, or any other. There is, therefore, no evidence the Council has not properly assessed the site against its criteria, and it is for the Council to decide what these criteria should be.
28. This is not to dismiss Mrs B’s concerns about her property, which I entirely understand. But, absent any evidence of administrative fault, I cannot uphold her complaint. It is not for the Ombudsman to decide the Council’s policy, and nor can we instruct it to disregard its policy in favour of particular complainants.
29. I should add that, if damage has occurred or occurs in future, for which Mrs B considers the Council is liable, this will be a matter for the Council’s insurers and, if necessary, the courts. Although we can criticise failures in the Council’s administrative process, we do not have the power to make findings on liability for property damage or award compensation.

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Final decision

30. I have completed my investigation with a finding of no fault.

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Investigator's decision on behalf of the Ombudsman