Decision : Upheld
Decision date : 29 Oct 2018
The Ombudsman's final decision:
Summary: Ms B complains the Council failed to take prompt and appropriate action to attend to a defective drain outside her property. The Ombudsman finds there was fault by the Council in the way it dealt with this matter and in its handling of the complaint about it. To acknowledge the injustice caused to Ms B the Council has agreed to apologise and to pay her £150. The Council will also review its procedures.
- The complainant, whom I shall call Ms B, complains that the Council failed to take prompt and appropriate action to repair a broken drain outside her property. The broken drain caused flooding to her property.
- I have investigated the actions of the Council in respect of the drain.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
- I considered all the information provided by Ms B about her complaint. I made written enquiries of the Council and took account of the information it provided in response. I provided Ms B and the Council with a draft of this decision and considered all comments received in response.
What I found
- Ms B, who is an owner-occupier, contacted the Council on 19 May 2017 to reported problems with a drain outside her home which appeared to be blocked with silt and leaves.
A works order is raised
- The Council inspected the drain on 22 May 2017, and raised a non-urgent maintenance works order request for cleaning and if necessary jetting of the gully. The Council’s record shows the job was given a category 3 rating with a target date for completion of 19 June 2017, 28 days from the date of inspection. I will return to the matter of this categorisation later in this statement.
- On 28 June, the Council did routine gully emptying maintenance in the cul-de-sac where Ms B lives but its records are conflicting about whether the gully outside number 15 was cleansed then. The Council says it has recently revised and improved its recording of such matters.
- On 14 July, Ms B telephoned the Council to advise she had spoken with an operative who had tried to unblock the drains and encountered difficulty. She said the operative had thought the drain could be broken as water was going below ground making a grassed area wet, and he advised he would make an electronic note and inform the Council. Ms B told the Council water was going right up to her property.
- On 20 July, an inspector attended the location again but as the works task was already pending for the gully outside number 15, no further works order was raised. Ms B then called the Council on 28 July, reporting that the inspector had told her a camera would be used to check the gully, and she wanted to know when this would happen.
- On 24 August, a technical review officer (TRO) updated the Council’s record for the works order which had been raised. He noted non-urgent investigative works were needed to have the gully cleared and jetted, with a camera investigation only being ordered if the crew were unable to clear it. The Council says the intention of the works was to establish where this gully discharged to.
- On 26 September, Ms B made a further call enquiring again about the camera and when the works would be carried out.
Ms B makes a complaint
- On 7 November, Mrs B made a complaint. The Council issued its response at Stage 1 of the complaints procedure on 21 November. It set out the action taken to date and said investigations had shown the pipe was not broken and so camera equipment would not be required, and the drain would need clearing by using the normal equipment. The Council said the works were raised as ‘category 3’, which it said was for works to be done ‘as and when resources allow’.
- The Council has a Highway Inspection Code of Practice (‘the Code’), and this sets out how defects are categorised and what response times apply. The Code refers to category 1 and 2 defects. Category 2 defects are all those defects which do not represent and immediate or imminent hazard, and so are non-urgent and may be included in planned programmes of work. Within category 2, defects may be high, medium or low risk. Category 2 repairs assessed as medium risk (described in the Code as ‘Defect 3’) have a repair target of 28 days.
- Ms B was not advised that the categorisation applied to the works order raised for the blocked drain meant it had been scheduled as a repair to be done within 28 days. The Council says the Code is being re-written and that staff are aware the 28-day timescale no longer applies. Prior to 21 November 2017 Ms B was given no indication at all of likely timescales, despite having made numerous enquiries about that. The failure to give Ms B relevant information about timescales at an earlier opportunity was fault.
- The Council said appropriate steps had been taken to investigate the report and identify appropriate action, and her complaint was therefore not upheld.
Stage 2 complaint
- Ms B was dissatisfied and wrote back to the Council seeking progressing of her complaint to Stage 2 of the Council’s procedure. The Council asked her to give the reasons for her dissatisfaction and she provided that information on 15 January 2018. The Council acknowledged this and advised it was making further enquiries.
- In the meantime, following Ms B’s contact with the Council on 27 November, the TRO had asked the scheduler to try and get the works programmed. However, the Council says that due to the amount of work that the crews were dealing with it was not possible to say when this work would be completed.
- On 16 January 2018, the Council’s complaints team leader contacted the Local Community Highway Liaison Officer (CHLO) setting out what had happened to date and asking if there was anything else that could be done to assist in resolving the drainage issue. The CHLO replied the next day saying they would chase up the outstanding job to jet the gully.
- The complaints department did not chase progress on this until some nine weeks later, on 23 March. That was fault. On 28 March, the CHLO replied saying investigation had led to a query about whether the relevant section of land was adopted highway. The Land Charges department was considering this. On 5 April, the complaints department chased the matter again and on 11 April obtained a response from the CHLO confirming the view that the drain is not on highway land and it would not therefore be doing any further works to it. On 16 April, the complaints department replied to relevant officers asking if the decision not to carry out work could be re-considered. The Community Infrastructure Liaison manager replied setting out why it took the view the gully was not on public highway and so not maintainable at public expense. The officer considered the inspector who had raised the job for the gully to be jetted and cleared acted in good faith, but in error.
- Commenting further on this in its response to my enquiries the Council says the inspector did not have any reason to consider that the gully in question was not the responsibility of the Council as, for the most part, the cul-de-sac looks like any other adopted road and the site itself is not part of a newly built or otherwise obviously private estate. It says routine gully maintenance in the cul de sac carried out by the Council for several years had included the four gullies in the area now deemed to be private, as operatives would not have reason to suspect the gullies are not the responsibility of the Council. But it says it has since updated its records and removed these four features from its asset management system so crews will no longer include them in the maintenance programme.
- On 23 April, the Council wrote to Ms B confirming it would not do work on the drain as it did not belong to it. It explained what it had considered in reaching this view. That was a decision it was entitled to make having considered the evidence held.
- The Council’s complaints procedure sets out a timescale for response at stage 2 of 25 working days, and says that where this is not possible it will notify the complainant of when they can expect to receive outcome to their complaint. Having acknowledged Ms B’s stage 2 complaint on 16 January it then failed to provide any update until 16 April. It did apologise then for the delay. The delay was fault. The Council had in fact decided not to progress the complaint at Stage 2 but it had not told Ms B this.
Works are undertaken
- On 4 and 5 July 2018, the works to cleanse the gulley were completed. The Council says operatives have confirmed the gully outside Ms B’s property outfalls via a pipe that runs under the grass area next to the property, to a manhole within the grounds of the neighbouring property, and it is not connected to the Council’s highway drainage system.
Time taken to complete the works
- The Council acknowledges that the time between the raising of the works orders and their completion was approximately 14 months. The Council says that although evidence was pointing towards this drainage being a private responsibility and not on the public highway, there was still a query that could only be clarified by jetting the gully and checking its outfall. As the issue was not deemed to be posing any imminent risk to safety it was not possible to prioritise the investigation of the outfall.
- There was fault by the Council in failing to let Ms B know at an earlier opportunity how long she might expect to wait to have the matter attended to. She had asked about this in July, having reported it in April, and there is no evidence that she was told before November that it would be when resources allowed. There was also fault by the Council in the handling of Ms B’s complaint at stage 2.
- The faults identified above caused injustice to Ms B. She suffered disappointed expectation that the matter might have been resolved sooner, and was put to some time and trouble in chasing the matter and pursuing her complaint.
- In recognition of the injustice caused to Ms B, I recommended that within four weeks of the date of the decision on this complaint the Council provides Ms B with a formal written apology and pays her £150.
- I further recommended that within three months of the date of the decision on this complaint the Council reviews its procedures to ensure that so far as possible the faults identified by this complaint investigation may be avoided in future.
- The Council has agreed to my recommendations.
- I have completed my investigation on the basis set out above.
Parts of the complaint that I did not investigate
- I did not investigate the question of damage to Ms B’s property which she considers may be attributed to fault on the part of the Council. If she considers the Council is liable for any such damage, she could make a claim against the Council’s insurer. Liability would ultimately be a matter for the courts to determine.
Investigator's decision on behalf of the Ombudsman