Summary: There is no fault in how the Council has decided that it has no duty to stop Mr X’s foul water system backing up following heavy rainfall. The Council has properly investigated the site and considered all the available information before making its decision. There was fault by the Council when it failed to respond to Mr X’s enquiries about this. It should apologise to Mr X and share this statement with staff.

The complaint

1. Mr X complains that the Council has failed to take action to make sure surface water drains properly from the road outside Mr X’s property. He says the flooding causes the wastewater to back up which is unhygienic and means that he cannot flush the toilet. It also means that traffic cannot easily pass.
2. Mr X also complains that the Council did not respond to his enquiries in good time and he could not get any information from it without making a formal complaint.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I considered the information provided by Mr X and discussed the issues with him. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered all comments received before issuing this final decision.

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What I found

What happened

6. Mr X contacted the Council about flooding on the road outside his house. He had already contacted the Water Company because when it floods, wastewater backs up into his toilet causing it to overflow and also, his bath will not drain. The bathroom is on the ground level. Mr X tells me that this happened around eight times in Autumn/Winter 2023 and Spring 2024.
7. The Water Company visited the site in November 2023. It surveyed the site using CCTV investigations. The Water Company concluded that the surface water outfall was backed up. It checked the manholes on the road and found that a culvert was also full. It said this meant that surface water that was supposed to drain into the Water Company's systems could not drain. It said that wastewater was backing up into Mr X’s house because the surface water was not draining properly from the road.
8. Mr X had contacted the Council in 2023, but the Council says it has no record of his contact until he sent an email at the beginning of December 2023. He asked the Council what action it would take in light of the Water Company’s findings. The Council did not respond to that email.
9. Mr X telephoned the Council at the beginning of February 2024, but again it did not respond. Mr X called the Council to report flooding on the road at the front of his house in mid-February. The Council visited that day but did not find any standing water. It concluded that the road drainage system had been overwhelmed by exceptional rain fall, which had since drained and so it did not take any further action.
10. Mr X made a formal complaint to the Council the next day. The Council telephoned Mr X that day. It told Mr X that surface water from rainfall should not affect the plumbing in his house as the waste and surface water systems are not linked. However, it said it would ensure that the road drainage system was working properly by checking the gullies in the verge opposite Mr X’s house.
11. Mr X chased the Council around two weeks later. The Council called Mr X back a month after his chasing email. It told him that there were no problems with the road drainage and he should go back to the Water Company for help with the waste-water drainage.
12. The Council says it completed a wet weather survey to make sure the road was draining in May 2024. It has no notes of this survey, but it has explained that it visited the site in moderate rainfall and found the road to be clear of standing water, and the surface water gullies and offlets were working.
13. Mr X made a further complaint to the Council that month. It explained to Mr X that it had inspected the road outfall and found that it was free of silt and working correctly so that surface water could drain from the road. It had also checked the drainage ditches and these were also satisfactory. It said it would continue to monitor the site but it did not intend to do any work to the drainage system. Mr X complained to the Ombudsman.
14. The Council initially explained to me that:
• The problems with Mr X’s toilet and bath backing up is not linked to the surface water system. The toilet and bath are connected to the Water Company’s foul water system which is separate.
• If rainwater is getting into the foul water system then the Water Company can consider if work is needed to stop this.
• The Water Company is also responsible for the some of the surface water drainage system. The Council is responsible for the highway gullies that connect to this.
• The Water Company surface water system and the Council’s highway drainage ultimately run to a privately owned ditch.
• The Water Company said that the culvert is full and not draining properly. The Council has explained that this is part of the Water Company’s surface water drainage system. The culvert is in the privately owned ditch. The landowners are responsible for maintaining those ditches and if these are impacting on the Water Company’s surface water drainage system, then it could consider contacting the landowners.
• The Council has the power to take action to ensure that ditches are kept clear if required for land drainage, but it has no indication that the ditches require work.
15. During the course of my investigation, the Council’s senior engineers have visited the site again. This led the Council to slightly revise its findings. It now says:
• Its highway gullies connect into the Water Company’s combined sewer and not the surface water system. During heavy rainfall the combined sewer is overwhelmed and this affects Mr X’s property and also causes standing water on the road.
• There is a system to temporarily store storm water before releasing it into the drainage system. The set up of the storage system is also impacting on the surface water system and this is the Water Company’s responsibility.
• It has concluded that the lack of capacity in the Water Company’s combined sewer system during periods of heavy rainfall is causing Mr X’s problems.
• Its view is that the road drains and the open watercourses are not contributing to water backing up into Mr X’s property.

Analysis

16. The Ombudsman has no remit to investigate the Water Company’s actions. I have investigated whether there is fault in how the Council has decided that Mr X’s problems are not caused by those parts of the drainage systems it is responsible for.
17. The Council has visited and thoroughly inspected the site and its drainage systems. It has considered the Water Company’s findings of its own site visit, and the Company’s information about ownership of systems relevant to the site. The Council has also considered its legal powers to serve a notice on the landowners of the nearby drainage ditches to clear these. However, following its inspection it does not consider this necessary nor that unmaintained ditches are impacting on Mr X’s problems.
18. As there is no fault in how the organisation made its decision, we cannot question the outcome. This means I cannot question the Council’s decision that it has no duty to carry out any work to aid drainage at the site.
19. At the heart of this issue is disagreement between the Water Company and the Council as to why Mr X’s wastewater is backing up to his property and who should fix this. I have considered whether Mr X can expect the two bodies to work together to resolve this. But the Council has no obligation to do so, and it has not found that there are problems in the parts of the drainage systems it is responsible for. As such, there is no basis for me to recommend the Council changes its approach.
20. There was fault in the Council’s response to Mr X’s enquiries. It did not respond to him until he made a formal complaint. It was entirely necessary for Mr X to contact the Council, given the response he had from the Water Company. The Council’s delay caused him frustration and it is likely that it has meant that this will take longer to resolve.
21. I also would expect the Council to have kept a record of its site visit and wet weather survey in May 2024, particularly as this was in response to a formal complaint. Although, the impact on Mr X of this fault is limited as it did not affect the final outcome.

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Agreed action

22. The Council will within one month of the date of this decision:
• Apologise to Mr X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Share this decision with the relevant staff including, those responsible for responding to highway and land drainage enquiries.
23. The Council should provide us with evidence it has complied with the above actions.

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Final decision

24. I have completed my investigation. There was fault by the Council causing Mr X injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman