Summary: There was no fault in the Council’s decisions or actions around preventing Mrs X’s garden flooding. However, the Council was at fault for not updating Mrs X as it said it would. We are satisfied the Council has remedied the injustice caused by this.

The complaint

1. Mrs X complained the Council has not taken the agreed action to prevent flooding in her garden from a sports pitch. She complained the Council is not taking sufficient action to prevent flooding. She also complained the culvert is too small.
2. Mrs X said this has caused unnecessary and avoidable distress and frustration, and has been going on for many years. She said it has impacted on her health, and she constantly worries about floods. She said she has gone to considerable time and trouble.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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(1), as amended)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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. (Local Government Act 1974, sections 26B and 34D, as amended)

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What I have and have not investigated

8. Mrs X previously complained to the Ombudsman about the Council’s actions to prevent flooding. In summer 2021, the Ombudsman found the Council at fault. The Council agreed to take certain actions (see paragraph 17).
9. Mrs X complained to the Ombudsman again in late 2024. As I have said above (paragraph seven), we cannot investigate late complaints unless we decide there are good reasons.
10. Mrs X said she continually communicated with the Council about this issue between 2021 and 2024. She said in 2023, the Council Leader visited her home to discuss the issue. She said the Council Leader promised the Council would take action, which she believed. Mrs X said she eventually complained to us when she felt the Council was no longer taking the action it promised.
11. I have considered Mrs X’s reasons for not complaining to us earlier. I find there are good reasons for us to exercise our discretion and look back to October 2021, which is when the Council should have completed the agreed actions from the previous Ombudsman investigation.
12. I have considered the Council’s actions up to October 2024, which is the date of the Council’s stage two complaint response.

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How I considered this complaint

13. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.

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What I found

Background

14. Mrs X lives near an unnamed ordinary watercourse near a train line. The watercourse helps drain water from nearby land. In the watercourse, there is a culvert (which is a structure that channels water past an obstacle or to a subterranean waterway) which channels the water under the railway line.
15. Parts of Mrs X’s garden flood when there is heavy rain.
16. In 1996, the Council and what is now Network Rail agreed that the Council was responsible for maintaining and repairing the culvert.
17. As I have said above, the Ombudsman made a finding in 2021 that the Council was at fault. The Council agreed to:
• arrange for an independent consultant to a reassess the nearby sports pitch drainage; and,
• write to Mrs X within four weeks of receiving and considering the report from the independent assessors. The Council agreed it would explain what the reassessment found, confirm what (if any) action the reassessment required, and confirm when this would be carried out.
18. The Council commissioned two expert reports to assess the drainage network. These both recommended, among other things, a flow control device (or “hydrobrake”) to restrict the flow of surface water run-off.

What happened

19. In 2024, Mrs X complained to the Council. She said experts had recommended a hydrobrake in their reports. She also said the Council had not updated her in line with the Ombudsman’s findings.
20. In its stage one complaint response, the Council said it had communicated a lot with Mrs X since 2021. It said there were a number of different bodies and individuals involved in managing flooding to Mrs X’s garden. The Council said it was responsible for several things, including the culvert. It set out what Network Rail was responsible for.
21. The Council said it would not increase the size of the culvert pipe because experts did not identify the size as an issue. It said regardless of which body owned the pipe, any works would need to be commissioned by Network Rail.
22. The Council said it continued to work with various authorities to make sure the right works were being undertaken at the right time. It said works to the culvert would not improve the flood risk to Mrs X’s garden. This was because of the natural features of the area.
23. The Council said it seemed the main cause of the flooding at Mrs X’s garden was Network Rail’s ditch which was silted up. This prevented water from getting into the watercourse. The Council said this then backed up into the culvert.
24. In its stage two complaint response, the Council said there had been some delays to the works. This was largely because the Council did not have control over all the elements of the work.
25. The Council recognised that it had not fully explained to Mrs X why it did not implement the experts’ recommendations. It said it no longer considered a hydrobrake was necessary and explained the technical reasons for this decision. The Council said a fully comprehensive solution to Mrs X’s concerns was not achievable.
26. The Council explained how it was maintaining the culvert. It set out how it was clearing one end of the culvert. It said it was seeking approvals from Network Rail to clear the other end. It said there was no evidence the culvert pipe’s size was a factor. It said there were several factors that impact the culvert’s effectiveness and efficiency, including vegetation and silting in Network Rail’s ditch.
27. The Council recognised Mrs X’s frustration with the size of the culvert pipe but said it was not possible to take it any further.
28. Mrs X then complained to the Ombudsman.

Analysis

Agreed action from the previous Ombudsman investigation

29. Mrs X complained the Council has not taken the agreed action to prevent flooding in her garden. I have set out these actions in paragraph 17 above.
30. I find the Council commissioned reports to re-assess the drainage, as it agreed to do. However, the Council did not write to Mrs X and explain what the reassessment found and confirm what (if any) action the reassessment required.
31. In its second complaint response, the Council accepted it had not done this. This is fault. I find this fault caused Mrs X uncertainty which is injustice.
32. The Council told Mrs X in its second complaint response what the reassessment found and what action the reassessment recommended. The Council also explained its reasons for not implementing all of the experts’ recommendations.
33. I consider this explanation, although delayed, is a suitable remedy for the level of injustice caused by the fault.

Council action to prevent flooding

34. Mrs X complained the Council is not taking sufficient action to prevent flooding. She said the experts said the Council should fit a hydrobrake, but the Council has not done this. She wants the Council to fit a hydrobrake.
35. I agree that both reports recommended installing a hydrobrake, among other things. The Council considered the experts’ reports and decided not to instal a hydrobrake. It has explained its reasons to Mrs X. I find no fault in the way the Council decided not to implement this recommendation. This was a decision the Council was entitled to make. And without fault in how a decision was made, the Ombudsman cannot criticise it (see paragraph four).
36. The Council has taken on board what the experts said about the number of factors limiting the culvert pipe’s effectiveness and efficiency. This includes vegetation and silt in Network Rail’s ditch which prevents water flowing upstream. This results in the watercourse backing up during storms, which means parts of Mrs X’s garden flood.
37. The experts recommended that Network Rail de-silt and clear vegetation from the ditch. I am satisfied the Council is in contact with Network Rail to make sure this work is done.
38. Mrs X said she feels the Council is trying to fob her off by taking responsibility then finding a reason not to take action. While I understand Mrs X’s frustrations, I find no fault with the Council’s actions.

Culvert size

39. Mrs X complained the culvert is too small. She said the wrong size culvert was used when the culvert was first installed. She said the Council Leader visited her in 2023 and told her in person the culvert was too small.
40. I have seen the email the Council Leader sent Council officers and Mrs X after visiting Mrs X’s property. The Council Leader referred to the diameter of the culvert pipe as the “essential obstacle to free flow of flood water”. However, they also said they are “not a legal or technical expert, and this email should not be taken as a corporate response to [Mrs X’s] complaints and claims.”
41. I do not agree that this email shows the Council accepted, with full technical and legal knowledge of the situation, that the pipe is too small and therefore the Council should enlarge it.
42. The Council told the Ombudsman its remit has always been to clean and assess the culvert, not to upgrade it.
43. I have considered the 1996 agreement between the Council and Network Rail. The agreement says the Council will maintain and repair the culvert. For this reason, I agree with the Council. I find it is not within the Council’s ability to upgrade the pipe. I have seen no evidence that persuades me the Council’s decision here is wrong.
44. Mrs X said parts of her garden flood because the culvert pipe is too small. I have considered the experts’ reports. They said there are a number of factors which lead to flooding.

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Decision

45. I find fault causing injustice. I am satisfied the Council has taken action to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman