Summary: The Ombudsman found fault by the Council on Mr J’s complaint. It failed to take effective action, and carry out repairs, to prevent road surface water run-off draining on to his land. There were failures to respond to his reports, delays arranging work, poor record keeping, a failure to deal with his formal complaint properly, and a failure to show how it considered and assessed his concerns. The agreed action remedies the injustice caused.

The complaint

1. Mr J complains the Council, as highways authority, failed to:
1. take effective action to prevent water draining off the highway on to his land;
2. properly install a crossover to his drive;
3. carry out repairs to the highway and the crossover; and
4. properly respond to his complaint.
2. As a result, every time it rains, his property is flooded, the crossover and property are suffering, all of which is causing him a great deal of stress, anxiety, and frustration.

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What I have investigated

3. I have limited the investigation of Mr J’s complaint about the Council’s action from October 2019 and not earlier. The paragraph at the end of this statement explains why.
4. I investigated complaint b) even though usually, we would expect Mr J to exercise his right to seek a remedy from the courts for a breach of contract about the quality of the work. If he considered the works were done negligently, which made the flooding of his land worse, we would also usually expect him to seek a remedy for damages through the courts.
5. I exercised discretion to investigate complaint b) because I consider the issue of the flooding generally is closely linked to the installation of the crossover.

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The Ombudsman’s role and powers

6. If we are satisfied with an organisation’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)
7. 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)
8. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care has done. (Local Government Act 1974, sections 26B and 34D, as amended)
9. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)

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The Highways Act 1980

10. The duty to maintain highways includes maintenance of features of a highway relating to flood risk. Highway Authorities (the Council) have powers under the Highways Act 1980 to lay new drains, erect barriers, cleanse existing drains, and drain roads or prevent surface water flowing onto roads.

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East Sussex Highways

11. East Sussex Highways is the Council’s external contractor and is responsible for ensuring rainfall flows away from the road and pavement surfaces into the highway drainage system. Its drainage network is made up of drainage gullies which are connected by a system of pipes that eventually flow in to watercourses, such as rivers for example.
12. To prevent flooding, it carries out regular cleaning of gullies and where necessary clears connecting pipework. It clears its drains on a cyclical basis which means they are cleaned at least once every three years but targets those which get blocked more frequently than others.

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How I considered this complaint

13. I considered all the information provided by Mr J, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I have also seen photographs and videos he sent. I sent a copy of my draft decision to the Council and Mr J. I considered their responses.

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What I found

14. Mr J has lived in his house for more than ten years and started reporting problems with flooding from the road in 2017. Mr J complains the eight gully drains along it do not drain water away because they are blocked, collapsed, or sunken.
15. To the front of his house is a road which is at the lowest point of a hill. When it rains heavily, the water runs down the road and pools outside his drive where it begins to overflow down it.
16. His drive slopes down from the road towards his house. The videos and photographs he sent show rainwater running down the drive, down steps towards his house, and then across the patio to its side until it flows down across his land towards a neighbouring property.
17. Mr J complains:

• the Council installed the crossover to his drive but ignored his concerns about it needing a kerb to act as a barrier for road surface water. He says the camber (slope) in the centre of the road at this location is higher than at its sides. He complains it ignored this concern when it installed it;
• the Council replaced some of the gullies but these all feed in to a single pipe which is unable to carry the volume of water; and
• he has been pushed back and forth between the Council and the local water board when looking for action and solutions.

18. In response to my enquiries, the Council explained its highways maintenance services is outsourced to an external contractor, East Sussex Highways (Highways). The Council is responsible for the gullies on Mr J’s road, including the outlet pipework from them to the water board’s carrier system. If the water board’s systems become overwhelmed, the Council’s gullies back up.
19. The Council accepted Highways failed to take effective action to prevent water entering Mr J’s property. It found it often unresponsive to his enquiries and complaints and failed to work proactively with the water board to address the problems about maintenance and capacity of its assets. The Council apologised to Mr J and offered him £200 for the concern and inconvenience caused.
20. The Council also offered to take the following action to address the problem. It will:

• upgrade 11 existing gully grids to 600x600 mm to increase their capacity;
• excavate three swan neck gullies to investigate why they are not working effectively and arrange for necessary repairs;
• remove roots from the pipework and install lining to two gullies; and
• contact the water board weekly about the surveying of their system and reviewing its capacity.

21. It also accepted there were delays completing works to the crossover but is satisfied it was delivered to a satisfactory level. It has no record of him raising specific concerns previously about it and does not intend to carry out further works. It will arrange for an engineer to meet him if he remains dissatisfied.
22. It offered to take the following action to address the problems found with customer service and complaints management. It will:

• increase the number of quality audits done on the service provided by Highways' customer team;
• deliver training to all those in the customer team about accurate recording of customer interactions and proactive complaint management; and
• deliver specific training for the officer who managed this case with the focus on lessons learned.

23. I now consider each of Mr J’s complaints:

Complaint a): lack of effective action and Complaint c): repairs

24. These are the key dates:

2019:

• October: Mr J complained to Highways about flooding of his garage and property. He wanted to raise a formal complaint because it failed to carry out works agreed, proper maintenance, and repairs. Highways sent Mr J an email apologising for the time taken to resolve the problem but confirmed it had been escalated internally and there would be a meeting.
• November: Mr J complained to Highways about ongoing flooding problems with drains and gullies on the road. He also wanted a dropped crossing but could not do this until drainage was sorted. He later emailed saying six weeks before, officers met and were treating this as a priority, but the works were still not done. The Council chased Highways, asking it to send Mr J a response to his complaint as the deadline had now passed.
• Highways contacted the Council accepting it took too long to give a date to do the works. This was because of resource issues within a team. It set out a plan of works for that and the following month which included raising the height of a stretch of kerb to stop water going over it, changing gratings to a larger size, as well as emptying and flushing gullies.
• The Council apologised to Mr J for delaying approving the drainage works but explained some of it was to do with waiting for the water board to attend to faults. While it could ask utility companies to carry out remedial works, it has no power to say when these get done. It accepted it took too long for it to give a date for the works to be done. It set out the work dates for November and December.
• In his reply, Mr J noted it took more than the few months the Council seemed to think to do the works. He pointed out resurfacing of the road reduced the height of the kerb, so this section of pavement sits below the level of the road’s camber. The reduced height of the kerb means it floods. Both the pavement and kerb need raising to allow the crossover to work. Highways also needed to adjust this section of the road. He noted simply dropping the kerb and resurfacing the pavement to the front of his drive would not work.

2020:

• September: Highways’ contractors completed works to the crossover and says it raised its height to stop water entering his drive. It provided no evidence showing this is what it did although in his response to my draft decision, Mr J confirmed the works did marginally raise the height of the kerb. It also inserted a channel directly to the front of the kerb to help with the water flow, pointing it to the nearest gully. Mr J disputes the claim about the channel.

2021:

• July: The Council wrote to Mr J after his report of a blocked drain outside his property. It said it met its safety criteria and was cleared. He replied saying four remained blocked.
• August: Mr J contacted the Council and alerted it to seven blocked gullies on his road and referred to reporting this in June. In another email he referred to a call to the Council where he raised concerns about the gullies, but these were not cleared and remain blocked apart from one outside his house. The Council replied saying it could not give a time frame for clearing the other gullies. It also told him it contacted the water board, asking about the capacity and condition of its carrier drains.
• The same month, he also asked for an update for gulley cleaning. He was told officers sent his email to Highways.
• September: Mr J contacted the Council again having had no response from Highways.
• October: An internal email from Highways said it was trying to arrange a site meeting with the water board to see if there are any other works it can do at this location to reduce surface water. As a combined system, the drains require the carrier system managed by the water board to run clear. Highways asked it to clarify whether its system is clear. An engineer would visit that week to look at the camber of the road, as well as additional drainage solutions including any with the water board. This road was included as part of a weekly review meeting to look at progress on drainage issues to find a solution. It stated the complaint should have been responded to but there was miscommunication about annual leave.
• The Council sent him its stage 1 complaint response which told him the information set out in the internal email. Towards the end of the month, Highways emailed him about meeting their engineer that day. It confirmed it cleaned one of its drains. The following day he told the Council the drainage team had visited and cleared blocked gullies. He wanted Highways to speak to the water board
• The Council says there were three attempts to arrange a meeting with the water board with no response. It has no record confirming these attempts or any further attempts.
• The same month he reported further flooding.
• November: Mr J told the Council the joint meeting with the water board did not happen, but it did visit the site and put CCTV in 100 metres of the drains and cleared roots from pipes. Highways also put CCTV in the pipes and unblocked gulleys, but the rebuilding of collapsed drains did not happen. He also said the Council’s drainage team said the crossover kerb was too low, was constructed incorrectly, and the tarmac failed.

25. The Council confirmed Highways arranged for the maintenance schedule to be done quarterly rather than annually. It accepted some flooding reports were not progressed to identify key issues as they should have been which is why some works still need doing. It accepts these works need urgently doing.
26. It accepted poor record keeping and introduced a new training plan for its contact centre team to ensure the correct procedures are followed along with extra training using Mr J’s situation to show how it failed to keep good records.
27. It is urgently trying to progress works to increase the 11 gully grids, root clearance, and lining works. Once it has evidence of how the cyclical clearance has affected surface water in this location, and should these works not help drainage, it will contact the water board to seek it increasing its capacity of its system.

Analysis

28. I found fault on this complaint and in doing so, took the following into account:
1. The Council apologised to Mr J for delays with getting approval for works to solve the flooding problem and with arranging dates for the works. Highways confirmed the delays were due to resource problems. Evidence shows Highways accepted it took too long to give dates for the works.
2. The Council accepts Highways: failed to take effective action on his reports to prevent water entering his property; was unresponsive to his enquiries and complaints; failed to work proactively with the water board to address problems with maintenance and capacity of its assets.
3. There was some delay in clearing reported gullies near to his home between August and October 2021. No evidence was provided of the Council or Highways contacting or liaising with the water board about the condition and capacity of its drainage system.
4. There is no evidence of the Council considering his concerns about flooding at this location because of the height and slope of the middle of the road in relation to his house until October 2021. This was a year after it installed the crossover.
5. As the Council accepted, recording keeping was poor.
6. I am satisfied the identified fault caused Mr J an injustice. This is because it caused him distress in the form of uncertainty about who, if anyone, was taking action. He also lost the opportunity of having the matters resolved sooner. In addition, it caused him significant stress, inconvenience, and frustration.
7. I saw no evidence of the crossover needing repairs. I found no fault on this complaint.

Complaint b): properly install crossover

29. Mr J had a crossover installed on the road to the front of his drive about 18 months ago. The work was done by contractors instructed by Highways. He says Council workmen who visited in October 2021, told him the work was done incorrectly. They sprayed markings on the road and pavement showing where corrections were needed. Mr J was unable to provide any evidence showing what was said to him.
30. The Council has no knowledge, or records, showing this is what workmen said.
31. Mr J argues the corrective work was never done. He believes the tarmac is now lifting and breaking up because it was laid by hand rather than machine.
32. Evidence shows Mr J contacted the Council long before its installation with his concern that simply lowering the kerb to form a crossover will not stop water entering his property. This is because the road surface at this level sits below the central section’s camber. He noted this section of the road would need adjusting to allow the crossover to work. To the side of his drive entrance are two gullies.
33. The Council pointed out the crossover height was raised to stop water entering his property but provided no evidence showing it. In addition, it inserted a channel to the front of the kerb to help with the water flow towards the nearest gully away from Mr J’s property. In his response to my draft decision, Mr J said nothing was inserted in front of the kerb. It claims a manager met Mr J on site before its installation and warned flooding could still happen, but Mr J decided to proceed with the works. No evidence of this advice was provided. An officer inspected it in March 2022 and found no safety defects and nothing to show it is failing. No evidence of the inspector’s findings was provided other than photographs.

Analysis

34. I make the following findings on this complaint:
1. While the Council says a manager met Mr J on site before installing it, warning him flooding could still happen, there is no evidence to support what it claims. It would have been good practice to have put such a warning about the continued risk of flooding in writing to Mr J before he continued with the installation.
2. The Council provided photographs taken during an inspection in March 2022. These show two gullies on the road to the side of Mr J’s property. They also show there is a kerb with some ‘lip’ although clearly lower than the kerb height to either side of the crossover. The photographs do not show surface damage to the crossover or suggest problems with its construction.
3. The evidence does not show:

• how the Council considered, assessed, and addressed his concerns about the road’s camber and height in relation to the height of the reduced crossover before its installation;
• evidence to support what the Council said about increasing its height;
• it considered whether the crossover might cause more pooling at this location, and flooding of his drive; and
• what the Council claimed the inspection found during the visit in March 2022.
4. I consider the identified fault caused Mr J an injustice. This is because he has the uncertainty of not knowing whether the Council properly considered his concerns before installation and whether it might have reduced the risk of flooding had it done so.

Complaint d): complaint response

35. In August 2021, Mr J complained to the Council. It asked Highways to respond but Mr J contacted the Council again later that month saying he received no contact.
36. In September, the Council told him it had now logged it as a corporate complaint. It explained it would write to him within 20 working days.
37. The Council’s responded to his complaint in October, apologising for his initial enquiry and complaint going unanswered. It explained this was due to miscommunication between staff taking annual leave. It told him of the efforts made to arrange a site visit with Highways and contact with the local district council to arrange more street cleaning to reduce debris. The Council signposted him to us if he remained unhappy.
38. The Council’s complaints process says it will acknowledge a complaint within three working days and send a response within 20 working days. Sometimes it can take longer to resolve issues and, in such cases, will explain how long it is likely to take.
39. The Highways complaints procedure says it will send an acknowledgement within one working day and a reply within ten working days. If it cannot resolve the query within that period, it will let the complainant know

Analysis

40. I found fault on this complaint because Highways failed to either acknowledge Mr J’s complaint within one working day, send its reply within ten working days, or explain when it would send it to him if it could not meet these deadlines. The failures caused several weeks of delay to him receiving a response.
41. I considered this caused Mr J an injustice as the delay caused him frustration and inconvenience.

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Agreed action

42. I considered our guidance on remedies.
43. I also considered the action the Council offered to take, which for the flooding issue includes:

• upgrading 11 existing gully grids to 600x600 mm to increase their capacity;
• excavating three swan neck gullies to investigate why they are not working effectively and arrange for necessary repairs;
• removing roots from the pipework and install lining to two gullies; and
• contacting the water board weekly about the surveying of their system and reviewing its capacity.

44. In addition, I also considered the action it offered to take for the failures in the complaints process which includes:

• increasing the number of quality audits done on the service provided by Highways' customer team;
• delivering training to all those in the customer team on accurate recording of customer interactions and proactive complaint management; and
• delivering specific training for the officer who managed this case with the focus on lessons that can be learned.

45. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mr J a written apology for the failure to: take effective action on his reports; respond properly to them; provide evidence of contact and liaison with the water board; keep and maintain proper records; show how it assessed and considered his concerns about the crossover and the risk of flooding; deal with his complaint properly under its complaints procedure.
2. Review why Highways failed to properly respond and take action on his reports.
3. Remind officers of the need to make and retain contact and evidence of liaison with the water board on future cases.
4. Provide Mr J with regular updates about progress on the actions it offered to take and ensure these actions are taken without delay.
5. Pay £250 to Mr J for the avoidable injustice the identified fault caused.
6. Pay £100 to Mr J for the time and trouble he experienced when making a formal complaint.

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Final decision

46. I found fault on the complaint made by Mr J against the Council. The agreed action remedies the injustice caused.

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Parts of the complaint that I did not investigate

47. Mr J complained to us in December 2021. The law says we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done.
48. This means we would usually investigate the Council’s actions from December 2020. I exercised discretion to investigate the Council’s actions from October 2019. This is because of the ongoing stressful nature of the flooding he experienced.

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Investigator's decision on behalf of the Ombudsman