Summary: Mr C complains the Council failed to properly maintain a drainage system causing his pond to silt up. We have found fault by the Council in its complaint handling and in the time taken to confirm it was responsible for the drainage system. We consider the agreed action of an apology, £300 and actions the Council has already agreed about maintenance of the drainage system provide a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council has failed to properly maintain a drainage system it installed. Mr C says because of the Council’s fault, a silt trap it installed has failed leading to his walled and listed pond silting up.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

5. Mr C moved to his property in 1978 and says he contacted the Council about clearing the ditch along a particular lane shortly afterwards. Mr C says the Council diverted a watercourse to the ditch using an 18 inch pipe during the 1980s and the ditch water is then sent under his property to much smaller pipes.
6. The Council believes that following flooding of neighbouring private properties the National Rivers Authority (NRA) a predecessor of the Environment Agency (EA) or the drainage board diverted the ordinary watercourse which was flowing through private gardens and to do this the pipe was installed into the public highway. The outfall from this installed piped system then returned to the private ditch in question as the original outfall point. The watercourse then continues its course under the historic farm buildings in the original carrier system via the pond and towards the river.
7. Mr C says this work caused issues of blocking and so the Council agreed to maintain the ditch and install a silt trap. At some point the Council stopped maintaining the ditch and more recently the silt trap failed.
8. Mr C made a formal complaint to the Council about this matter on 14 September 2020. The met with Mr C on site in December and subsequently treated the complaint as a service request. Following the site visit the Council considered the ditch had been maintained by the NRA. The Council did not provide a response to Mr C’s complaint under its complaint procedure. This is fault.
9. In response to contact from the Ombudsman, the Council said in September 2021 that it would provide an update to Mr C within two weeks. The Council acknowledged it had not kept Mr C informed and apologised. The Council wrote to Mr C on 29 September to say the matter was being considered by the Somerset Rivers Authority (SRA) and the Council would provide an update in due course. The Council has provided correspondence with the SRA during this period.
10. Mr C has provided copy correspondence from the Council. This included a letter dated 24 September 2003 which says the drainage at the lane will be cleared in the next few weeks and incorporated into the maintenance schedule; a letter dated 14 December 2004 which says ditch clearing and carriageway patching was to be completed in the New Year; and a letter dated 4 February 2005 which agrees an unspecified proposal and that the work will be completed within 3 months (Mr C says this was the silt trap which has now failed).
11. The Council has explained its Highways team had not previously had sight of this correspondence and were not aware of the historic work. The Council has now confirmed it carried out the work set out in the correspondence. The Council has further investigated the matter and found additional correspondence from Mr C which demonstrates it installed the headwall and agreed to clearing out the ditch on its clearance plan. The Council has provided a copy of this correspondence.
12. The Council has apologised that this correspondence was not discovered during earlier searches in 2020 and more recently which it says was affected by a complex access to a previous document storage system. The Council does not have its own records of the works as it only retains records of maintenance or drainage works for the required six years.
13. Mr C says the failure to regularly maintain the ditch has led the silt trap to fail which in turn has allowed his pond to become silted up after only 2 ½ years from when he arranged this to be cleared. Mr C says this action had normally only been required every 10 years. For this reason, Mr C is seeking a commitment from the Council to replace the silt trap and regularly maintain the ditch and to arrange the removal of the silt from his pond on this occasion.

14. The Council has confirmed to the Ombudsman that it now accepts the responsibility for the maintenance of the drainage scheme, ditch and silt trap due to the decisions made in the past by previous officers. The Council says it recognises its responsibility to include the clearance of the drainage ditch on its scheduled plans and will ensure this is done. At the start of the new financial year the Council will raise an order to carry out ditch clearance along the private track next to Mr C’s outbuilding. The Council has explained it is likely to arrange this work during the summer months when the material will hopefully be dry as saturated material would require more lorry movements and take longer.
15. The Council will also raise an order to repair the silt trap which has separated from the ditch bank and this will also most likely be completed in the summer just after the ditching work has been completed and the area is clear.
16. The Council will also review the effectiveness of the scheme that was put in place and decide on the best way forward following that review. The Council says that the SRA currently provide funding to assist in clearance of silt traps across the highway network as part of an ongoing programme and it will add this location although it is considered private property to the routine programme of de-silting which will help the effectiveness of the drainage.
17. The Ombudsman would welcome the Council’s actions above which go a long way to providing Mr C with a remedy for his complaint.
18. However, the Council does not accept responsibility for clearing the silt from Mr C’s pond. The Council says if Mr C disagrees with its decision not to take responsibility for clearing the silt from his pond, he could instruct for this work to be completed by a contractor/farmer and pursue an insurance claim to reclaim the cost of this work. The Council has provided details of how to submit such a claim.
19. I cannot decide the question of liability for Mr C’s pond silting up or responsibility for its removal. However, it is clear the Council had a responsibility for the drainage scheme, ditch and silt trap and its maintenance but this was not actioned for some time. I am satisfied, Mr C has suffered uncertainty over the impact on his pond and time and trouble in pursuing the matter both with the Council and the Ombudsman. In the circumstances, I consider a further remedy is required in addition to the action the Council has already outline above.

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Agreed action

20. The Council will:
1. complete the ditch clearance work and repair the silt trap by the end of September 2022;
2. ensure future maintenance of the drainage scheme, ditch and silt trap is scheduled as required;
3. provide a written apology to Mr C for its failure to both provide a response to his formal complaint under its complaint procedure and identify its responsibility for the drainage scheme, ditch and silt trap sooner within one month of my final decision;
4. pay Mr C £300 in recognition of his uncertainty and time and trouble within one month of my final decision; and
5. review its complaints procedure and staff guidance to ensure formal complaints complete the Council’s complaints procedure within three months of my final decision.

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Final decision

21. I have completed my investigation as I have found fault by the Council but consider the agreed action above provides a suitable remedy.

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Investigator's decision on behalf of the Ombudsman