Plymouth City Council (24 001 120)
Category : Transport and highways > Highway repair and maintenance
Decision : Upheld
Decision date : 13 Nov 2024
The Ombudsman's final decision:
Summary: We upheld Miss Y’s complaint about the Council’s response to a series of reports of defective highway drainage outside her home. We found the Council at fault for a combination of poor record keeping, poor communication and delay. This caused Miss Y an injustice, as avoidable distress. The Council has accepted these findings and at the end of this statement we explain how it will now remedy the injustice caused to Miss Y and improve its service.
The complaint
- Miss Y complained about the Council’s response when she reported problems caused by overflowing highway drains which led to water entering her property. She said several reports she made to the Council resulted either in inaction or in it wrongly recording the problem as fixed when it was not.
- Miss Y said the water entering her property caused damage, including to her garage and to her front door. In addition, she said she experienced unnecessary frustration trying to resolve this issue.
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 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)
- 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)
- 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)
How I considered this complaint
- Before issuing this decision statement I considered:
- Miss Y’s written complaint to the Ombudsman and any supporting information she provided;
- correspondence exchanged between Miss Y and the Council that pre-dated our investigation;
- comments and information provided by the Council in reply to our written enquiries;
- relevant guidance produced by this office, including our guidance on remedies; Guidance on remedies - Local Government and Social Care Ombudsman
- I also gave Miss Y and the Council a chance to comment on a draft version of this decision statement and provide any further evidence they considered relevant to the investigation. I took account of any response they made before finalising the decision statement.
What I found
- Miss Y lived on a residential road in the Council’s area (‘Road A’), maintained by the Council. Her home lay below the level of Road A. Highway drains outside Miss Y’s house flowed into the public sewer network maintained by the local water provider. Close to where Miss Y lived another road joined the highway (‘Road B’). This was a private road maintained by a third party.
- In April 2023 Miss Y first reported problems with the highway drainage outside her home. She said gullies on the opposite side of Road A overflowed and said one was blocked with debris. Water then ran into the gullies outside her home, which overflowed in turn (a gulley is the drainage point on the edge of the road covered with a metal grate).
- Council records show that it closed the report in May 2023. It told Miss Y that its contractors had visited the location at the beginning of May and cleaned the highway gullies.
- Miss Y made a second contact in May 2023, just a few days after the Council closed her first enquiry. She said she had received an email telling her the Council had ‘resolved’ her enquiry but the problems continued. The following day the Council made a note on its records that said: “inspected, no defect found”. But another note said a site visit could not address the issue raised by Miss Y and it needed further investigation. It said the Council ‘may’ undertake a CCTV inspection of the highway drainage, something it also said in an email to Miss Y.
- In June 2023 Miss Y made a complaint she had heard nothing further. The Council said in response it had checked the highway gullies and found them clear.
- Miss Y was unhappy with this response and in July 2023 escalated her complaint. She repeated that debris had blocked one of the gullies opposite her home, likely running from the driveway of a nearby house. The Council, said that it knew in the past water had flowed on to Road A, near to Miss Y’s home, because of blockages to the highway drains serving Road B. It said that it would:
- investigate Miss Y’s report of the blocked gully opposite her home;
- liaise with the owner of Road B to check when it last cleaned the highway drains it was responsible for;
- undertake a CCTV survey of the highway drain around Miss Y’s home.
- Miss Y told us she made further reports of issues in August, November and December 2023. The Council said it had no record of receiving a report in August 2023. It closed the December 2023 report as Miss Y said on the referral, she did not want an update on progress. It closed that report with the comment: “no defect found”. The Council told us it completed a check of the highway gullies around this time and found them running clear.
- But it kept the November 2023 report open until April 2024. When it closed it, the Council said it needed to investigate further, including through undertaking a CCTV survey. Although in comments to this office the Council said it undertook a CCTV survey in February 2024. Later, it also told us it cleaned the gullies again during this month.
- In May 2024 Miss Y contacted the Council again in response to its reply to her November 2023 report. She highlighted the actions it had promised her in July 2023. The Council replied later that same month. It said:
- it had cleaned and undertaken a CCTV survey of the highway drains along Road A near her home;
- it had noted the problem with the blocked gully opposite her home. It would work with the nearby homeowner to stop debris entering the gully;
- it would contact the owner of Road B about keeping the highway drains clear on that road;
- it would contact the local water provider to see if any issues in its network might cause the problems reported by Miss Y on Road A.
- Since then, the Council told me:
- work had completed to prevent debris entering the gully opposite Miss Y’s home;
- it had received confirmation the owner of Road B cleaned the highway drains it was responsible for in April 2024;
- the local water provider had told it there were no problems with its drainage network near Miss Y’s home.
- Miss Y told me she had made her own contacts with the owner of Road B and the local water provider. She considered the actions taken by both satisfactory at that time. She also noted the action taken to prevent debris entering the highway gully opposite her home.
- But Miss Y told me she remained unhappy with her experience last year. In particular, that she had made repeated new reports of issues with highway flooding, in response to the Council closing her reports. She said the replies she received did not give her the choice of speaking to an officer or arranging a site visit. If she had this, Miss Y considered the Council would have recognised the issue with the blocked gully opposite her home sooner. And taken sooner the liaison it later undertook with the owner of Road B and the local water provider.
- Miss Y considered the Council’s failure to act sooner resulted in more water entering her property than need have been the case. She explained how this flowed to the lowest point of her property, where her garage is, causing damage as well as flowing to the front door of the home. Miss Y told me she had spent time, trouble and expense installing a soakaway to try and trap any water flowing into the property.
My findings
- I had several concerns about how the Council responded to the series of reports Miss Y raised between April and December 2023. In particular:
- I struggled to understand what action the Council took in response to Miss Y’s first report in April 2023. It referred to undertaking an inspection but did not confirm the specific location, including whether it checked gullies opposite Miss Y’s home. I noted within a few days of the Council closing this report, Miss Y reported the same problem recurring.
- I found the record of what the Council did in response to the second report in May 2023 unclear. It appeared the Council resolved to investigate further, yet its records also suggested it closed the enquiry because it found ‘no defect’;
- I found that in response to Miss Y’s complaint in June, while the Council confirmed it had inspected, it did not say when and where this was;
- then in July 2023 the Council promised further investigation offering a more comprehensive approach. But it did not take any of the actions promised for several months.
- It should have been clear to the Council by November 2023 it had not undertaken action promised in July 2023. Yet it left that enquiry open for several months. Even though Miss Y said she did not want a response to her December 2023 report, this was not true of the November 2023 report. So, the Council should have updated her promptly.
- I considered this combination of poor record keeping, poor communication and delay justified a finding of fault.
- After February 2024, the Council undertook a comprehensive investigation into the problems Miss Y reported. This included a CCTV inspection of its highway drains and it checked with the water provider its knowledge of the sewer network those drains flow into. It reminded the owner of Road B of its responsibility to maintain the highway drainage of that road, and satisfied itself the owner knew of that and had cleaned those drains recently. It also took effective action to try and prevent the highway gully opposite Miss Y’s home becoming blocked with debris.
- These actions went some way towards resolving Miss Y’s complaint. But they did not provide a full remedy for her injustice. Because the faults above caused distress to Miss Y as uncertainty.
- First, Miss Y did not know what the Council was doing, nor when, to investigate the specific problems she reported.
- Second, Miss Y did not know therefore whether the problems caused to her property through water entering it could have been avoided, or lessened, had the Council acted without fault. I noted here that Miss Y had repeatedly drawn attention to the gully opposite become blocked with gravel from a neighbour’s drive. More than a year after Miss Y’s first report of this issues, the Council took action to address this with the relevant property owner. While I noted the Council had said earlier inspections found the gullies ran clear this appeared contradicted by Miss Y’s contact in July 2023 suggesting the Council had overlooked this issue.
- I could not say Miss Y’s distress extended to the damage caused to her property. This was not a matter I could assess. I explained above (paragraph 4) that we expect those who complain to sometimes look to resolve disputes through the Courts. That is our usual expectation when it comes to a claim for damages arising from alleged failure by the Council to maintain the highway. Before then, I expect Miss Y to claim against the Council’s insurers, as the prospect of Court action would only arise if she made an unsuccessful claim.
- Finally, I noted Miss Y’s comments that she considered her service requests and complaint could have resolved sooner had she had an easier way to contact the Council after it responded to her reports. She explained the emails closing her reports gave her no opportunity to respond to the Council to say it had not fixed the problem. Or to speak with the responsible officer to clarify the action it had taken. Instead, she had to raise a new enquiry each time.
- In its comments the Council defended its current procedure for those reporting highway disrepair. Its single IT programme means that its officers are not following up reports made through different channels, and I could see the obvious practical benefit of this. But I questioned if there might not still be some room for improvement here. In particular, when the Council received multiple reports of the same defect over time from the same location. I reflected this in recommendations for the Council to take further action which it has now agreed to.
Agreed action
Personal remedy
- To remedy the injustice caused to Miss Y by its fault, the Council has agreed that within 20 working days of this decision, it will:
- provide a written apology to Miss Y accepting the findings of this investigation. This should follow the approach we set out in our published guidance on remedies (section 3.2);
- make a symbolic payment to Miss Y of £300 in recognition of the distress caused by its poor response to her reports;
- include within its apology, details of how Miss Y can make a claim against the Council’s insurers should she want to;
- contact Miss Y in two months’ time to check there have been no ongoing problems with the highway drainage outside her home. It will respond in the meantime should Miss Y use its online reporting tool to report any further problems.
Service improvement
- To try and prevent a repeat of the fault identified in this case, the Council has also agreed, to complete a review of its communication with those reporting highway disrepair. It will complete this by the end of January 2025 and when it has done so, it will write to us and let us know of any action it has taken, or proposes to take, as a result of the review. The review will consider:
- the quality of information provided to those who report highway disrepair when the Council responds to their report. It will undertake a sampling exercise to check whether it routinely provides sufficient reasons when closing enquiries;
- the options given to those who report highway disrepair to query or challenge the response they receive when their enquiry closes.
- We expect the Council to provide us with evidence it has complied with any recommended actions it agrees to.
Final decision
- For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Miss Y. The Council has agreed to take action that will remedy that injustice and improve its service. So, I have completed my investigation satisfied with its response.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman