Summary: Mrs F complained about Council inaction in investigating causes of flooding on the lane where she lives. And for not completing drainage works it had identified several years before. The Ombudsman finds no fault with the parts of the complaint we have investigated.

The complaint

1. The complainant, whom I shall refer to as Mrs F, complains as follows.

1. Since 2016, the Council has known about a problem with drainage on the lane where her home is. The Council says it added new drainage to its drainage schemes list. But it has not provided her with information to show the work was added to the list. Or that the Council has reviewed and maintained the list.
2. She asked the water company and the Council to investigate why the lane flooded in August and October 2020. While the water company did an investigation, the Council has not completed a satisfactory investigation.
3. The Council has claimed works to her driveway have damaged a gulley, but has not provided evidence to support this.
4. She disputes the Council’s claims about the ownership of the land her driveway is on.
5. The Council’s contractor took photographs of building work the Council later said was unauthorised and caused damage. The Council should have contacted her earlier to ask her to stop the work, given its later concerns.
6. The Council delayed responding.

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What I have investigated

2. Mrs F is in dispute with the Council about work to her driveway, including alleged damage and disputed ownership issues. Adjudication on these issues involve contested questions of fact and law. They need the more rigorous and structured procedures of civil litigation for their proper determination. This is because the Ombudsman cannot make a binding ruling on a point of law. So I have not considered issues related to this threatened legal action (c. and d. of the complaint summary).

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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 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)
4. 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)
5. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
6. 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)

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs F;
• made enquiries of the Council and considered its response;
• spoken to Mrs F;
• sent my draft decision to Mrs F and the Council and considered their responses.

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What I found

Legal and administrative background

8. The Council is the Lead Local Flood Authority (LLFA) for the County. A duty of LLFAs is to investigate flooding incidents. (Flood and Water Management Act 2010 Section 19) But the Act does not place a duty on LLFAs to investigate the causes of every flood.
9. The Surrey Flood Risk Partnership Board (SFRPB) coordinates (at a strategic level) flood risk management works in the County. The Council sits on the Board. SFRPD has set out some “preliminary triggers”, where it expects authorities to investigate flooding:
• a flood occurs and is present for some time with no known source;
• ten or more properties in a catchment area experience internal flooding;
• a single property experiences repeat internal flooding within five years of the first flooding;
• ten or more commercial properties experience internal flooding or a single (large) commercial property experiences internal flooding;
• one or more items of critical national infrastructure experience flooding;
• a transport link is impassable for several hours.

What happened

10. The amount of information provided by Mrs F and the Council is considerable. In this statement, I have not referred to every element of that information, but I have not ignored its significance.
11. Mrs F’s home sits on a lane on the outskirts of a village. In August 2020 her home flooded, to the extent she and her family had to move elsewhere while repairs were undertaken.
12. The lane also flooded in August. It flooded again in October, although on this occasion Mrs F’s home was not affected.
13. Mrs F says, in November, she asked the Council to investigate the causes of the lane’s flooding. She also noted that her neighbour had forwarded her a 2016 text message from the Council’s engineer. The engineer had advised then that he accepted the lane outside the neighbour’s home had no gullies, so water collected in a dip in the lane. The engineer noted:

“…it will be most cost effective to install a new road drain so it is a case of waiting for available funding. I have quite a long waiting list of drainage schemes like this so I will add [the] lane but am not able to give any time frame.”

14. In December, the Council’s contractor attended the lane for a scheduled (annual) cleaning of its gullies. The report of the visit shows the contractor could not clean the gullies outside Mrs F’s home, as she was having work done to the entrance driveway, making the gullies inaccessible. The contractor took photographs.
15. The Council’s contractor reattended later in December 2020 and inspected two of the (three) gullies outside Mrs F’s home. Its report notes one was not working and the other was a “slow runner”. So in January 2021 the contractor attended to jet the gullies. It advised it could not excavate to examine why one of the gullies was not working, because of Mrs F’s completed works.
16. Mrs F has sent the Ombudsman the water company’s February 2021 report of its investigation after the October 2020 flooding of the lane. Its conclusion was the surface water had overwhelmed its system.
17. In February 2021 the Council responded to Mrs F’s November contact. It noted the gullies on either side of her driveway were working. But damage from her works had blocked the central gulley. It asked her to remove her driveway and repair the centre drain within 28 days. Communications about this between Mrs F, her representative and the Council have continued. As already noted (see paragraph 2), I have not investigated this part of Mrs F’s complaint.
18. Mrs F complained. The Council responded at the first stage of its complaints procedure. The response mainly dealt with matters which I have not investigated. But the Council also sent Mrs F its gulley maintenance records, showing the yearly inspections going back several years.
19. Mrs F asked for the Council to look at her complaint at the second stage of its procedure. In relation to the issues the Ombudsman has investigated, it said:
• “The Council has no responsibility to take action to install drainage on a road where it does not exist. Improvement works will be undertaken at those locations that Surrey Highways identify as a priority, where funding becomes available”;
• the works to the lane by Mrs F’s neighbour remained on a “…list maintained by the Local Highways team for potential drainage improvement works”.
20. In August 2021 the Council advised Mrs F it was investigating the cause of flooding of the lane.
21. Mrs F complained to the Ombudsman. I will not repeat all the Council’s response to my enquiries, for the sake of brevity. They are detailed and extensive. I set out the key points below.
• Any work near the neighbour’s home would not have made a difference to Mrs F’s situation. This was because, unlike the lane by the neighbour, there were multiple gullies outside Mrs F’s home. And the topography of the lane meant any flooding by the neighbour would not affect the lane where Mrs F lived. Flooding reports of the lane outside the neighbour’s home (in 2015 and 2019) did not coincide with flooding of the part of the lane outside Mrs F’s home.
• The local team had not been able to find any record of the 2016 assessment of the neighbour’s location. But it did have the work on its list of low priority drainage schemes. It gave me some information about the works it had completed in recent years and the ‘score’ the planned works near the neighbour scored, which made it a low priority.
• The Council’s contractor “… is responsible for collecting relevant data on the condition of the drainage system, and documenting anything out of the ordinary in the drainage system. They have no responsibility for informing customers with regard to unauthorised works. The sub-contractor is not educated on the council’s policies/procedures and is therefore not in a position to provide customers with advice.”
• It confirmed the lane around Mrs F’s home was prone to flooding, and there were multiple gullies to help with drainage. But:

“As this property falls within a high risk surface water flood zone, the Council cannot guarantee that this property will never flood. This property is a risk of flooding irrespective of the capacity of the highway drainage in the vicinity. The council’s liability is limited to maintain the existing drainage systems.”

• Mrs F had reported flooding to her garage in July 2021. On the day that happened, the Council received reports of flash flooding across the County. It had logged Mrs F’s report with the relevant team and prioritised its investigations of the reports. It was aiming to investigate the causes of the flooding near to Mrs F.

Analysis

22. The Council has provided an outline of how it sets priorities for minor drainage schemes. It has explained why the scheme by Mrs F’s neighbour was a low priority. Councils often need to balance conflicting interests. I see no fault with the process.
23. The Council has not provided me with more detailed information about the proposed drainage scheme and its place on its list. However, I do not need to investigate this further. This is because I accept the Council’s explanation that, whatever happened with the neighbour’s part of the lane, it is unlikely to have impacted on where Mrs F lives. I accept the Council’s explanation of the topography of the lane and the evidence that the different parts of the lane have flooded at different times. So there is insufficient injustice to Mrs F to warrant further investigation.
24. With the other parts of Mrs F’s complaint I have looked at, I do not see evidence of significant administrative fault. The contractor likely took photographs as evidence of why it could not fulfil its contract. That is why it reattended later in the month. I accept it was, likely, not until January 2021 that its contractor reported they could not access one of the gullies. The Council contacted Mrs F reasonably soon after that. It would have been better if the Council had kept in touch while waiting for information so it could respond to Mrs F. But I do not see any likely injustice warrants further investigation.
25. The Council is not under a duty to investigate all flooding on its road network. I accept its need to prioritise. The Council did agree in August 2021 to investigate the cause of flooding. It seems likely this was after Mrs F’s second flooding (of the garage) in July 2021. That would fit with the SFRPD’s “preliminary triggers”. So I see no evidence of fault.

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Final decision

26. I do not find fault with the parts of the complaint that I have investigated. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman