Summary: There was fault by the Council in its communications with Mr X regarding flooding to his property. The Council agreed a remedy.

The complaint

1. The complainant whom I shall call Mr X complains the Council failed to properly respond to his correspondence and complaints from November 2020 about flooding to his property from a reservoir it owns. He says he has had to reduce his tenant’s rent and he has been put to time and trouble.

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The Ombudsman’s role and powers

2. 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)
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).
4. 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).

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How I considered this complaint

5. I have discussed the complaint with the complainant and considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

6. Mr X contacted the Council in July 2020 regarding flooding from its land to his tenant’s garden. He says this had been going on for 4-5 years.
7. The Council says it started investigations in the late summer of 2020. It says that there were a number of flooding issues in the area which may have been related. The Council planned to reconnect the ditch system.
8. Mr X emailed the Council more than once for an update from July 2020. He also asked the Council to pay for fencing to his tenant’s garden because in his view the Council was causing the flooding and it was now a health and safety issue.
9. He received no response and so in late October 2020 he wrote to the Council’s chief executive. He said that he had no response regarding his emails about flooding to his and his neighbours gardens. He said he had installed a pump in the garden which had pumped out more tan a million gallons in four months. He said his tenant could not use the garden, and he had reply regarding his suggestion the Council paid for a fence.
10. The Council responded on 30 November 2020. It apologised for the delay in replying and said that it had been a particularly challenging period for it due to Covid 19. The Council explained the flooding issues involved both public and private land. The Council gave information about the solutions it was planning. These involved a three phase process including installing a new pipe to reconnect the ditch, improving the watercourse, works on the highway verge and re-establishing a ditch at the rear of Mr X’s property as part of the final phase. The Council advised it may take time for the improvements to show, and it was dependent on weather patterns. It appears the Council also advised that the work would start “imminently” and would be done “over the next couple of months”.
11. However, Mr X says the work did not start as stated over the winter of 2020. He emailed the Council in February for an update. It replied that it was carrying out work to reconnect the drainage system. Mr X asked who had disconnected it and when. He emailed again two weeks later asking for contact by the Council.
12. In March Mr X complained formally to the Council when it did not reply. He said there was no evidence the Council had done the work it had promised. He said he was continually pumping water out of his tenant’s garden. He asked when the Council would take action because it was its responsibility to resolve the issue.
13. The Council responded in April 2021. It partially upheld his complaint because it agreed it had not updated him properly from November 2020. It explained the issue was a complex and changing picture. Therefore, it needed to seek further clarification before it could update residents. It said it had carried out drainage works under the road and cleared some ditches. However, it said it needed to consider whether its plans would lead to flooding elsewhere. Following some tests it would now enlarge the ditch to the rear of the gardens of Mr X’s property. The Council also said it was liaising with the local district Council regarding repairing or replacing the land drains which may help alleviate flooding. It suggested Mr X could consider this himself. Finally, the Council said that it was local knowledge that a number of charges to ditches and water storage in the area may have impacted along with natural rainfall fluctuations.
14. The Council agreed it should have more regularly updated him. It said this was partly due to the changing situation. In addition due to Covid 19 there had been a huge increase in the use of its countryside assets putting pressures on its team.

Mr X complained further that the Council would not resolve the flooding by enlarging the ditch at the rear because once full it would then cause flooding as it needed to be fed away somewhere. He did not accept the Council’s explanation for its delays. He said that if land drains were considered, this should not be at his expense. In his view the Council was responsible for the water that was coming from its land and affecting his land.

The Council responded to Mr X’s complaint that it was not clear that the Council was responsible. It said that its investigations into the cause and solution were still in progress. It considered there were a number of contributing factors, some of which are beyond the responsibility of the County Council. Therefore, it could not fully uphold Mr X’s complaint.

15. The Council said it was continuing its investigation into the land drains, and it would look to see whether the increased capacity of the ditch had an impact. However, the Council did not agree with Mr X’s view that the cause of the flooding was from its reservoir.

Analysis

16. I consider there was fault by the Council due to its failure to update Mr X between July 2020 and October 2020, and between December 2020 and April 2021. This led to uncertainty for Mr X and time and trouble chasing a response.
17. The Council has apologised for its delays form November 2020. I consider this partly remedies the fault here. I recommended a further remedy to ensure Mr X is updated as the investigations and works are ongoing.
18. Mr X believes the Council is at fault due to the water coming from its reservoir. However, the Council does not agree with this, and says its investigations are continuing. In my view the issue is complex, and the cause is not clear. As the Council has not completed its investigations and is carrying out the work in a phased manner, this is taking time. However, I do not consider there is evidence of apparent fault by the Council in this respect.

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Agreed action

19. The Council has agreed to my recommendation that it will, within 6 weeks of my decision
• Apologise to Mr X for its failure to respond and update him from July 2020.
• Provide a written update every three months to Mr X regarding the investigations it is carrying out, the works it has completed, and the works it is planning to address the issue.

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Final decision

20. I have found fault by the Council. I have completed my investigation and closed the complaint.

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Parts of the complaint that I did not investigate

21. As I explain in paragraph 4, the Ombudsman expects a complainant to pursue the matter via the courts, unless he does not consider it is reasonable. In this case Mr X has suggested the Council may be negligent and that this has caused damage or loss in respect of his property.
22. We cannot decide whether a council has been negligent and do not have powers to enforce an award of damages. Only a court can make this decision. For this reason, we would usually expect someone in Mr X’s position to seek a remedy in the courts, directly or through his insurers.
23. I consider it is reasonable for Mr X to seek a remedy in court.

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Investigator's decision on behalf of the Ombudsman