Summary: Mrs B has complained that the Environment Agency has wrongly asked for an indemnity from her against the risk of harm caused by it cutting weeds. She also complained that it did not respond to her reports of flooding and damage. There is no fault in the Agency’s decisions. However, it did not always communicate with Mrs B properly and failed to direct her to its complaints process. This caused Mrs B distress and frustration. The Agency has apologised to Mrs B and as this is an appropriate remedy for her injustice.

The complaint

1. Mrs B complains the Environment Agency:
• is unfairly insisting she provides a solicitor’s letter indemnifying it from liability for any harm to her animals before it will resume cutting back weeds from a drainage ditch bordering grazing land;
• failed to respond to her reports of flooding in the area in 2023 and 2024; and
• failed to deal with her complaints to it in good time.
2. Mrs B says the lack of weed cutting is causing an increased flood risk. She wants the Environment Agency to cut back the weeds, without requiring her to provide the indemnity letter first.

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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 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)
4. 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)

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How I considered this complaint

5. I considered the information provided by Mrs B. I considered the information provided by the Environment Agency including its file documents. Both parties had the opportunity to comment on a draft of this statement. I have considered all comments I have received before issuing this final decision.

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What I found

What happened

6. The Agency owns a strip of land adjacent to a main river. This means that the Agency has responsibility as landowner for the river up to the centre line, including a responsibility for not allowing the river to become obstructed and for making sure it flows naturally.
7. The Agency also has statutory responsibility for oversight of the main river network including the power to do work to manage flood risk. These powers apply to the whole width of the river.
8. Mrs B owns land adjacent to the Agency’s strip of land, and grazes her animals on both her own land and that owned by the Agency up to the river. The Agency says Mrs B does not have a tenancy agreement to graze animals on its land.
9. Until 2020, the Agency did routine maintenance to remove weeds from the river. As part of this, it cut the grass so the excavator could access the riverbank. The excavator moves along the Agency’s land on the riverbank, removes weeds from the river, and leaves them on its strip of land to decompose. The cut weeds are a risk to Mrs B’s animals if they eat them. The Agency says that leaving the weeds is a common practice. It says the weeds are not considered waste and leaving them on the land allows any waterborne species to migrate back into the river.
10. Mrs B says that in the past, the Agency had given her notice of the work and she would remove her animals so that they would be safe. The Agency says in 2020, it notified Mrs B that it would be undertaking the works and she raised that the weeds left on the riverbank were a risk to her animals. The Agency decided not to carry out the work that year due to this risk.
11. However, Mrs B has told me that the contractors arrived in 2020 without prior warning and were rude to her. Mrs B says that as a result she contacted the EA. A different officer was now dealing with these arrangements. Their predecessor had given Mrs B notice of the weed clearing.
12. The Agency reviewed the situation the following year when the work was next due. The Agency decided to ask Mrs B for an indemnity against any claim for harm to her animals from its maintenance work on the riverbank. Mrs B questioned the Agency about this. She did not think this was necessary provided that she had enough notice to move the animals. However, the Agency was concerned the animals would be harmed by eating the weeds left on the bank. It decided not to go ahead with the work for a further year.
13. Mrs B has complained that the Agency does not require an indemnity from others grazing animals on sections of the riverbank. However, the Agency has explained that this is an uncommon situation because Mrs B does not have a tenancy agreement to graze animals on its land. It has now proposed to offer Mrs B an agreement and this will include an indemnity against any claim for harm to the animals.
14. Whether the Agency is cutting the weeds or not, it must make sure that it meets its duties a landowner and has regard for its statutory powers as the Environment Agency. In short, it is responsible for letting the water flow and for not obstructing the flow to the detriment of neighbouring land. It is also responsible for overseeing flood risk.
15. The Agency inspected the river in January 2022. The notes of the inspection say the channel was fairly clear with no issues and very little weed. The Agency carried out another visit to the area in 2024 and concluded that the flood risk had not increased by not cutting back the weeds. The Agency will inspect the area again in 2027. It says that it decides how frequently to inspect watercourses based on the level of risk and the importance of the watercourse.
16. The Agency has further explained that the river is a manmade watercourse and the water levels of the river and surrounding moors are controlled by a nearby pumping station. It has explained that vegetation in the river is not likely to have an impact on the rate of drainage of the moor and it will naturally die back in the winter months.
17. Mrs B also reported damage to the back in January 2023. The Agency visited the site. It says there was no damage to the bank. Mrs B says that at the time the Agency visited the site, it would not have been able to inspect the bank as the area had flooded. Also, Mrs B says the Agency did not tell her the outcome of its inspection and so she chased it for a response. She says she asked for a complaints policy but the Agency did not send one. Mrs B was finally able to make the complaint in 2024.
18. The Agency says that it inspected the site again in 2024. It agreed that water had overtopped the bank in some places, but this was due to high water levels further upstream caused by high rainfall, and so was to be expected.
19. The Agency’s inspection revealed that there was slight damage to the bank at one location and agreed to repair this and some other points further upstream. At another point of flooding, the Agency said there was no damage. It explained to Mrs B that her land was within the flood plain and so some flooding is expected.
20. Mrs B was dissatisfied with the response. She said it should have come from someone higher in the organisation as she was actually complaining about a member of staff. Mrs B also said that part of the riverbank had clearly eroded in 2023 but the Agency later that year said it had not and has now altered its view. She said her land had flooded when other land nearby had not flooded as much or as quickly and had drained sooner. Mrs B said that the Agency had contradicted itself in its communication with her about both the flooding and the weed cutting.
21. The Agency responded to Mrs B’s further complaint. It said that the inspections in 2023 had not found any damage but when it inspected again in early 2024, it had found damage to the bank. The Agency also commented on the difference between Mrs B’s land and other nearby land. It explained that source of the flooding was different in these areas and so it is expected that the water levels will be different.
22. Mrs B has raised these issues with the Agency at various times since 2020. She says that it has taken sometimes over a year for it to respond to her text messages and telephone calls. The Agency has apologised to Mrs B for failing to deal with her enquiries properly and for not giving her details of its complaints process when she asked. It has also offered to meet with her to discuss the issues in person.

Analysis

23. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong.
24. The Agency has explained that it needs the indemnity due to risk of harm to the animals and that other sites are different as this would normally be covered by a tenancy agreement. I appreciate that this is a change for Mrs B, but there is no fault in the Agency’s request for an indemnity.
25. The Agency has inspected the site and explained why it has not continued with annual weed cutting. It has based its view that it is not required on its inspections and it has taken into account its statutory and landowner duties. There is no fault in the Agency’s decision-making and so there is no basis for me to criticise its decision not to cut the weeds as regularly.
26. The Agency has responded to Mrs B’s concerns about damage to the bank and flooding in the area. It has explained that its change of position between 2023 and 2034, when it decided that a repair is needed, was based on the results of different inspections. Mrs B says that this is not possible and she suspects that the Agency did not properly investigate her reports of damage to the bank in 2023. However, the key issue is whether the Agency is meeting its responsibilities. It is for the Agency to decide whether it needs to carry out work to prevent flooding. It has done so based on its inspections and professional judgement and so there is no basis for me to criticise it.
27. The Agency has failed to communicate properly with Mrs B at times and did not refer her to its complaints process when it was clear she was dissatisfied. This caused Mrs B distress and frustration, and meant she had to contact it many times about the same issue. The Agency has apologised to Mrs B. Although any miscommunication over this issue would have been distressing to Mrs B, it has not altered the outcome. And so in this case, the Agency’s apology is sufficient.

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Final decision

28. I have completed my investigation. There was fault by the Agency when it failed to deal with Mrs B’s complaint properly, but it has remedied this.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman