Summary: Mr X complained the Council failed to act on his reports of a brook flooding the area around his home. We found evidence of delay by the Council. The Council agreed to apologise to Mr X, provide him with an update on the action it is taking and make him a symbolic payment in recognition of the injustice caused to him.

The complaint

1. Mr X complained the Council failed to act on his report of a brook flooding the area around his home. He stated the Council has been aware of the problem and its causes for around two years, but the issue remained unresolved.
2. Mr X stated the flooding causes problems with accessing his home and with deliveries. The flooding has also caused damage to his property. He also stated he could not sell his home because of the flooding.

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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 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)
5. 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)
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
7. 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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What I have and have not investigated

8. I have investigated Mr X’s concerns about the Council’s handling of reports of flooding near his home. I have investigated matters from January 2023 onwards.
9. I have not investigated matters that occurred before January 2023. This is because of the restriction set out in paragraph 4. I am not aware of any grounds to exercise discretion and investigate these matters now.
10. I have not investigated whether Mr X should be compensated for damage to his home. Complaints about damage to property are about whether an organisation has been negligent. We take the view insurers, and the courts are in the best position to decide whether an organisation has been negligent.

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How I considered this complaint

11. As part of my investigation I have:
• discussed the complaint with Mr X and considered information he provided;
• made enquiries of the Council and considered its response;
• considered the relevant legislation, guidance and policies;
• considered The Ombudsman’s Guidance on Remedies; and
• set out my initial thoughts on the complaint in a draft decision statement and invited Mr X and the Council to comment.

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What I found

12. Some councils have the power to act as the Lead Local Flood Authority (LLFA) for their area. Landowners have the primary responsibility for flood prevention. Councils’ powers (LLFAs) are permissive, meaning the council has a power but, not a duty, to act. Councils need to prioritise works based on need, and act, using public funds, when they consider they are justified in doing so.
13. An ‘ordinary watercourse’ is any river, stream, brook, ditch, culvert, pipe, or any other passage through which water may flow which is not designated as a ‘main river’.
14. Under common law, and under the Land Drainage Act 1991 (“the Act”) a person who owns land or property next to a river or watercourse is the ‘riparian owner’ and is responsible for the maintenance of the bank and bed of their section of watercourse and for removing any obstruction to flow.
15. If the ‘proper flow’ of a watercourse is impeded section 25 of the Act gives councils, the power to serve a notice on a landowner requiring that they take action to resolve the problem. Section 25a of the Act gives councils the power to carry out works themselves and recover the expenses reasonably incurred by them from the landowner.

Isle of Wight Council Highways Services

16. The Council uses a company called Island Roads Services Ltd to deliver highways services on behalf of the Council. Island Roads Services uses a contractor to maintain highway assets.
17. When a land drainage issue occurs Island Roads asks its contractor to carry out works necessary to keep the highway safe. It also carries out investigations to find out the source of the problem. Island Roads do not have any enforcement powers. It will tell the Council about the result of the investigation so it can decide what action or enforcement is necessary.

What happened

18. Mr X lives in a block of flats. A brook (“the brook”) flows along the frontage of the block of flats.
19. In January 2023 Island Roads investigated flooding of the brook. It found a blocked culvert within the brook. The blockage was restricting the flow of water along the brook. The culvert is on privately owned land.
20. Island Roads removed debris from the culvert, as a gesture of goodwill. It found a large amount of debris and thought pipework may have collapsed.
21. In March Island Roads met the owner of the land where the culvert is. They did not accept responsibility and said they were not the freeholder of the land.
22. Flooding from the brook continued throughout 2023, with an intensification of incidents in October and November. The flooding prevented access to the block of flats where Mr X lives, via the front entrance. This stopped deliveries. The flooding closed the footpath and highway.
23. In response Island Roads cleaned the gullies along the brook but flooding continued.
24. In December Mr X complained to Island Roads. He explained the impact of the flooding on residents where he lives and asked what it was doing to resolve the problem.
25. Island Roads replied saying that it was in contact with the landowner and told them about their riparian rights. It said it was preparing a case file to see what further action, if any, should be taken.
26. In January 2024 Mr X escalated his complaint. He said the problems with flooding were continuing. Island Roads replied saying it thought it had identified the cause of the flooding. It was waiting for a response from the landowner (this was a different landowner to one identified previously). It had complied an investigation case file for consideration by the Council.
27. In April Island Roads completed an investigation report. It said the culvert could not cope during periods of heavy rainfall resulting in flooding. The culvert is blocked and needs clearing. It recommended enforcement action be taken against the landowner requiring them to repair or clear the culvert.
28. Unhappy with the response to his complaints and the continuing flooding Mr X complained to the Ombudsman. In response to our enquiries the Council said:
• it has further investigated who is responsible for maintenance of the culvert. In August it established the person responsible for maintaining the culvert is neither of the people previously identified.
• it is arranging a more detailed survey to find out the exact location and extent of the blockage. It needs the consent of the landowner to do this.
• it will use its emergency powers to clear complete the survey work and take any immediate action. It will use the results of the survey to request the responsible person make repairs to the culvert, as is their responsibility under the Act.
• to complete the survey it needs to remove water from the culvert. To do this it needs to clear a section of the brook. The area has been identified as unowned, so it will clear this part of the brook.

Finding

29. Reports show a blocked culvert was identified as the likely cause of the brook flooding in January 2023. I consider there has been avoidable delay from January 2023 onwards. This is because:
• Island Roads met with the landowner initially thought to be responsible for maintaining the culvert in March 2023. The landowner said they were not responsible. While I understand efforts to contact the landowner broke down, I have seen nothing to suggest the Council carried out further investigation to find out if they were the responsible landowner until early 2024.
• A land drainage report was not given to the Council until May 2024. This is 17 months after a blocked culvert was identified as the likely cause of the flooding. In the intervening months flooding from the brook intensified in both frequency and severity. I would have expected the land drainage report to have been expedited because of the frequent reports and closures of the highway.

The identified delay is fault by the Council.

30. The delay means Mr X had to live with the impact of the flooding for longer than necessary. He has also been put to the time and trouble of complaining and seeking information to support his complaint. This is injustice.
31. I acknowledge the Council has taken timely action since receiving the land drainage report in May 2024 and that it has explained how it will act to resolve matters. I am pleased it is doing so.

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Agreed action

32. Within one month of my final decision the Council will:
• apologise to Mr X in writing for the frustration and avoidable time and trouble caused to him. The letter should also update Mr X on the actions it is taking and the timeframe for this; and
• make a payment of £200 to Mr X in recognition of the injustice caused to him.
33. Within three months of my final decision the Council should:
• complete a review of Mr X’s case to identify the causes of the delay and explain what action it will take to prevent a recurrence.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have completed my investigation and found fault by the Council which caused injustice, which the Council has agreed to remedy.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman