Decision : Upheld
Decision date : 02 Nov 2020
The Ombudsman's final decision:
Summary: Mrs X complained about a lack of action taken by the Council to address drainage problems, and about a lack of contact and delays. The Council accepted fault for delays and failing to update Mrs X. It agreed to provide a remedy.
- Mrs X complained about a lack of action taken by the Council to address drainage problems on the road where she lives, leading to surface water collecting on the highway. She also complains about a lack of contact from the Council and delays.
- Mrs X said the road is difficult and dangerous to use in winter, as the surface water freezes. She said she was put to time and trouble trying to get the Council to investigate and suffered uncertainty and frustration at the lack of action.
The Ombudsman’s role and powers
- 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)
How I considered this complaint
- As part of the investigation I have considered the following:
- The complaint and the documents provided by the complainant.
- Documents provided by the Council and its comments in response to my enquiries.
- The Council’s Highway Management Hierarchy and Highway Safety Inspections Policy (22 May 2018).
- The Highways Act 1980.
What I found
Law, policy, and guidance
- There are no laws or guidance stating what standard highways authorities must meet when maintaining highways. The Court of Appeal case of Rider v Rider (1973) confirmed the highway authority’s duty is to ‘reasonably maintain and repair the highway so that it is free of danger to all users who use that highway in the way normally to be expected of them.’
- Section 41 (1A) of the Highways Act 1980 states ‘a highway authority are under a duty to ensure, so far as reasonably practicable, that safe passage along a highway is not endangered by snow and ice.’
- While a highway authority has a duty to take reasonable action to get rid of water which has fallen directly onto a highway, it has no duty over water which has run onto the highway from surrounding land.
- An authority can serve a notice to a landowner (under the Highways Act 1980 s163) requiring them to construct or maintain channels, gutters or drain pipes to prevent water flowing onto the footway of the highway, but not the highway itself.
- Mrs X lives at the bottom of a residential street. She said there were problems with water gathering on the road for several years. When the weather is cold, the water freezes. This makes the road both difficult and dangerous to use on foot or by car.
- Mrs X reported the problem to the Council on 27 December 2017. She said groundwater was seeping out of the gutter.
- The Council told Mrs X the problem was not its responsibility. Mrs X questioned this, and the Council agreed to investigate the problem. The Council carried out a site visit on 7 February 2018 and took photographs. It asked a drainage engineer to investigate.
- Mrs X contacted the Council on 6 June 2018 because the problem was ongoing, and she had received no update. The Council handled Mrs X’s comments as a complaint. It asked Yorkshire Water (YW) to investigate.
- The Council sent its stage one complaint response on 18 June 2018. It said its drainage engineer would meet YW on site and ask YW to investigate the pipework. The Council believed there may be a problem with the surface water drain owned by YW. It said it would update Mrs X when this took place. Mrs X said she did not receive an update.
- Council officers met with employees of YW on 21 June 2018. They saw evidence of clear water running on the road. Tests ruled out an escape of waste water. It was considered there could be a clean water burst.
- YW spoke to Mrs X on 22 June 2018. It said the problem needed investigation by its leakage team as there was a very slight noise on the water main. It needed to carry out a night sounding to rule out a clean water system issue.
- Mrs X telephoned YW on 22 November 2018 for an update. YW said no investigations had taken place. It raised this as a new issue.
- YW carried out an inspection on 8 December 2018. No leaks were found. YW suspected the problem was ground water.
- Mrs X told me she continued to have conversations with the Council between December 2018 and October 2019, but not in writing. She contacted the Council by email on 8 October 2019 as the problem was not resolved and she had not received any updates.
- The Council spoke to Mrs X on 11 November 2019. It confirmed it was carrying out further investigations, using specialist camera equipment to look at gullies and pipework. It found a buried manhole in a resident’s garden which could be causing the problem.
- In its final complaint response on 12 November 2019, the Council upheld Mrs X’s complaint. It said the problem had not yet been resolved and apologised for how long it had taken. Depending on its findings, the Council intended to install underground drainage to intercept the water. Given Mrs X’s concerns about cold weather, it said it would carry out the works as soon as possible.
Response to my enquiries
- The Council told me the time taken to deal with the problem is not untypical for this type of issue. Progress was hampered by unforeseen events and budget constraints. Work has now started and is on track to resolve the problem before winter.
- The Council has limited resources and must prioritise its response to highway flooding. It prioritises flooding on roads by the effect and risk to highway users. Significant flooding on a high-speed road would be a higher priority than periodical flooding on low speed roads. It is acknowledged winter flooding presents an added risk.
- Identifying the cause of water flowing on the highway from private land can be complex. The problem in this case is water seeping up though the land. This is not easily fixed in a residential area. The area where Mrs X lives has several reported land water issues. YW were involved but ruled out leaks from a clean water supply or domestic drainage.
- YW carried out a CCTV survey on 11 November 2019. This confirmed the road gullies were not soak away gullies. The water drained via pipes. The pipes were in good condition and not blocked.
- The Council recognised it did not tell Mrs X the issue may take considerable time to resolve. It did not update Mrs X or give her a timescale after further investigations were carried out and more information was available about the complexity of the problem.
- The Council received a separate complaint about blocked gullies on Mrs X’s street on 8 October 2018. The Council checked the gullies on 15 January 2019. They were not blocked but were cleaned. The Council inspected the gullies again on 23 April 2020. All were recorded as working.
- The Council uses a priority system when considering highway repair and maintenance, based on risk. It followed that policy. The drainage issues Mrs X experienced were low priority under Council policy and did not therefore require immediate action. The Council did agree to investigate and to take action it considered suitable. I have not seen evidence of fault in that regard.
- The evidence I have seen shows the Council provides grit on Mrs X’s street in the winter for snow and ice. I have not seen evidence to show the Council failed in its duties under the Highways Act or failed to reasonably repair and maintain the highway.
- Mrs X first reported drainage issues to the Council on 27 December 2017. A CCTV survey did not take place until November 2019, almost two years later. Some of the delays, between June and November 2018, appear to be the fault of YW and not the Council. However, the Council accepted there were delays on its part and apologised to Mrs X for this.
- The Council’s final complaint response said it would carry out works as soon as possible. It took almost 11 months for work to commence. I appreciate the work was complex, there were unforeseen circumstances, budget constraints, and a global pandemic. However, the Council should have kept Mrs X updated. That was fault. The Council accepts this.
- Mrs X wanted to know what the Council had found and what action it could take. She had to contact the Council, and YW, herself to make sure investigations were taking place. The delays and lack of communication caused Mrs X distress, including uncertainty and time and trouble. That is her injustice.
- Repeat its apology to Mrs X for its delays and failure to update her.
- Pay Mrs X £100 to recognise the distress its faults caused.
- I have completed my investigation. The Council accepted fault for delays and failing to update Mrs X. It agreed to provide a remedy.
Investigator's decision on behalf of the Ombudsman