Summary: Mr X and Ms Y complain about how the Council handled their reports of water coming from a neighbouring property onto the highway and causing damage. The Ombudsman finds the Council at fault for not telling Mr X and Ms Y about its decision not to take enforcement action against their neighbour. The Council is also at fault for failing to keep Mr X and Ms Y updated about its discussions with their neighbour following their further reports and complaint. The Council has agreed to apologise to Mr X and Ms Y and pay them £250 to recognise the time and trouble spent pursuing their complaint.

The complaint

1. The complainants, whom I refer to as Mr X and Ms Y complain about how the Council handled their reports of water coming from a neighbouring property onto the highway.

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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. 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. 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

5. As part of this investigation I considered the complaint by Mr X and Ms Y and the Council’s response. I discussed the complaint with Ms Y via telephone. I made enquiries to the Council and considered the information received in response. I sent a draft of this decision to Mr X and Ms Y and the Council and considered comments received in response.

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What I found

Legislation

6. A council has a duty to maintain all its highways that are maintainable at public expense. (Highways Act 1980, section 41, as amended)
7. A council can serve a notice to a landowner requiring them to construct or maintain channels, gutters or drain pipes to prevent water flowing onto the footway of the highway. (Highways Act 1980, section 163, as amended)

What happened

8. In June 2017 Mr X and Ms Y reported water from their neighbour’s garage was running on to the footway outside their property. The Council visited the site and found no erosion of the footpath or defects. The Council said there was a build up of algae and told Mr X and Ms Y to report this should the footpath start to erode.
9. The Council also passed this case to its enforcement team to consider. The enforcement team decided not to progress this due to there being a low level of footfall on the path. The Council decided this was not a safety concern, however it did not tell Mr X and Ms Y of its decision.
10. In February 2018 Ms Y contacted the Council about another matter but also raised the issue of water running onto the footpath from her neighbour’s garage. The Council visited the site and told Mr X and Ms Y it would monitor the problem and contact their neighbour to discuss a resolution.
11. The Council said it did not think it suitable to serve a notice on the neighbour as the discharge of water did not appear intentional. Also, the neighbour had installed a water butt to try to reduce the water flowing onto the footpath.
12. The Council tried to contact Mr X and Ms Y’s neighbour but were not successful. The Council made no further contact with Mr X and Ms Y and did not pursue further action.
13. In November 2018 Mr X and Ms Y telephoned the Council asking for an update. The Council did not respond.
14. In May 2019 Mr X and Ms Y made a complaint about how the Council had dealt with the drainage issues onto the footpath outside their property. The Council responded to Mr X and Ms Y’s complaint and said the neighbour had placed a water butt under the downpipe to collect rainwater following the enforcement officer’s visit to the site. The Council said it thought this was satisfactory. The Council said it inspected the footpath in May 2019 and there were no areas which needed repair. Also, the Council said it did not believe the neighbour had discharged water deliberately onto the highway and it will not take enforcement action.
15. Mr X and Ms Y sent the Council a further letter in June 2019 as they were unhappy with the Council’s response. They said:
• The enforcement team failed to tell them the result of the enforcement investigation.
• The enforcement team gave them conflicting information as the neighbour installed a water butt to collect water from the highway and at first the Council said this was not appropriate.
• The enforcement team said the neighbour had not deliberately discharged groundwater onto the footpath. Mr X and Ms Y said they obtained a surveyors report showing the neighbour failed to manage water flow through their land.
• Their surveyors report shows a slip risk at street level and poor drainage on the neighbour’s garage.
• Why did Council visit the site in May 2019 after it was cleaned and after the Council said it would not take enforcement action.
16. On 16 June 2019, the Council told Mr X and Ms Y it could not respond to their complaint within its deadline as it was still waiting for advice from its highways contractor. The Council provided its response to Mr X and Ms Y’s complaint in early August 2019. The Council:
• Apologised for the enforcement team not updating Mr X and Ms Y on its decision not to take enforcement action.
• Apologised for miscommunication about the water butt. The Council said the water butt was there before the initial inspection of the site. However, it did not think the water butt was overflowing and is happy it is removing water from the garage downpipe.
• Thought algae was coming through the grass bank and wall due to natural springs. The Council did not believe the neighbour was discharging water illegally onto the highway.
• Said it took the additional visit in May 2019 following further contact about the water running onto the footpath. The Council said it has found a further build-up of algae on the footpath so will try to explore the possibility of a compromise to form a drainage channel with the neighbour. The Council said it would keep Mr X and Ms Y updated about the result.
17. From August 2019 until October 2019 the Council contacted Mr X and Ms Y’s neighbour to discuss resolving the drainage issues. It visited the site, agreed to provide a licence to install extra drainage on the public highway and wrote to the neighbour outlining what actions it should take to resolve the issue. The Council proposed installing an accro drain across the full front of the neighbour’s garage which would be linked to a cross-channel pipe running below the pavement and dispersing the water into the carriageway.
18. In November 2019 Mr X and Ms Y contacted the Council asking for an update as they had not heard anything. The Council confirmed it was still working with the neighbour and would update them every Friday going forward.
19. The Council sent several update emails to Mr X and Ms Y, the last being in December 2019, but did not update them weekly. In January 2020, the Council continued to work with Mr X and Ms Y’s neighbour to get a quote for the necessary works to the drain.
20. Mr X and Ms Y contacted the Ombudsman as they were not happy with the result of the complaint. In June 2020, the Council confirmed to the Ombudsman the neighbour had installed a new accro drain across their garage which disperses water onto the carriageway. The neighbour had also removed the water butt so water flows directly into the drain from the pipe. The Council was satisfied this resolved the drainage issues.

Analysis

21. When the Council came to inspect the site in June 2017, following Mr X and Ms Y’s reports of water running onto the footpath, it did not tell them about its decision not to take further action. This is fault. The Council should have told Mr X and Ms Y of its decision not to progress this and explained its reasons.
22. Mr X and Ms Y made further reports to the Council about the drainage in 2018. The Council rightly came to inspect the site and told Mr X and Ms Y it would monitor the problem and contact their neighbour to discuss a resolution. From the evidence provided the Council tried to contact the neighbour but was not successful and then took no further action. Mr X and Ms Y received no update from the Council and in November of 2018 they contacted the Council for an update but again did not receive a response. This is fault.
23. As a result, Mr X and Ms Y made a complaint to the Council. The Council’s initial response contained wrong information about a water butt being installed following the Council’s intervention. This caused Mr X and Ms Y to progress their complaint further. The Council correctly recognised it provided Mr X and Ms Y with incorrect information and apologised. The Council also apologised for not telling them of the enforcement team’s decision. This was a suitable response.
24. However, due to a further build-up of algae on the footpath, the Council agreed to look into the possibility of a compromise with Mr X and Ms Y’s neighbour and keep them updated.
25. While the Council did contact the neighbour and took steps to negotiate a solution, it did not keep Mr X and Ms Y updated. This resulted in Mr X contacting the Council again. The Council confirmed it was working with their neighbour and would provide Mr X and Ms Y with a weekly update. While the Council did initially provide an update, it stopped at the beginning of December 2019. From the evidence seen the Council did not update Mr and Ms Y until the new drainage was installed later in 2020. This is fault.
26. I have not found fault with the Council’s decision not to take enforcement action and to work with the neighbour to install extra drainage. From the evidence seen the Council inspected the site and assessed the damage as not being serious enough to warrant enforcement action. This is a decision the Council is entitled to make. The Council then assessed what works needed to be carried out to stop the water running onto the footpath and requested the neighbour carry these out. The Council satisfied itself these were completed.
27. However, throughout this process it did not keep Mr X and Ms Y updated. As a result, they complained to the Ombudsman. Had the Council kept Mr X and Ms Y updated as agreed, it may have avoided Mr X and Ms Y making a complaint to the Ombudsman. Throughout this process Mr X and Ms Y had to chase the Council as they were not aware what was happening about the drainage issue outside their property.

Agreed action

28. Within one month of my final decision the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
• Apologise to Mr X and Ms Y for not providing them with regular updates as agreed.
• Pay Mr X and Ms Y £250 in recognition of the time and trouble spent pursuing their complaint. In coming to this figure I have considered the Ombudsman’s guidance on remedies and taken into account the Council failed to update Mr X and Ms Y on more than one occasion.

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Final decision

29. I have completed my investigation and found fault by the Council which caused injustice to Mr X and Ms Y. The Council has agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman