Summary: Mr X complained the Council failed to accept responsibility for maintaining a blocked culvert on land near his home. Mr X also complained the Council failed to acknowledge his disability or his need for reasonable adjustments under the Equality Act. The Ombudsman found there was fault causing injustice when the Council failed to properly investigate the blocked culvert, when it gave inconsistent information about special contact measures, and when it failed to properly engage with Mr X about his disability.

The complaint

1. Mr X complained the Council failed to accept responsibility for maintaining a blocked culvert on land near his home. He said the culvert became blocked and has flooded his home on several occasions, causing structural damage.
2. Mr X said the Council now accepts responsibility for the culvert but the repairs it carried out are not suitable to prevent further flooding. He is unhappy the Council failed to take enforcement action to ensure associated drainage ditches are kept clear.
3. Mr X also complained the Council failed to acknowledge his disability or his need for reasonable adjustments under the Equality Act. He said the Council instead placed him under special contact measures. He is unhappy the Council gave inconsistent information about this.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Highways Act 1980.
• The Equality Act 2010.
• The Council’s special contact measures – managing unreasonable and unreasonably persistent behaviour policy and procedures.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Highway maintenance

8. There is no legislation or guidance stating what standard highways authorities must meet when maintaining highways. The Court of Appeal case of Rider v Rider (1973) confirmed the highway authority’s duty is to ‘reasonably maintain and repair the highway so that it is free of danger to all users who use that highway in the way normally to be expected of them.’
9. A highway authority has a duty to take reasonable action to get rid of water which has fallen directly onto a highway. However, it has no duty over water which has run onto the highway from surrounding land. 
10. An authority can serve a notice to a landowner (under the Highways Act 1980 s163) requiring them to construct or maintain channels, gutters or drain pipes to prevent water flowing onto the footway of the highway, but not the highway itself. 
11. An authority should carry out regular inspections to ensure its drains are not blocked (e.g. by vegetation growth).
12. If a complaint involves actual damage caused by flood water, the authority will probably refer it to its insurers as a negligence claim.  If the complainant is not happy with the outcome, we would normally expect them to take the matter to court.

Equality Duty

13. The Equality Act 2010 brought together all previous equality legislation. Section 149 of the Equality Act created a new public sector equality duty. This includes a duty for public sector bodies to eliminate discrimination and advance equality of opportunity when carrying out their functions.
14. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body carrying out a public function. It aims to make sure a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
15. When the duty arises, service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
16. The duty is anticipatory. This means that, within reason, councils should consider in advance what disabled people with different impairments might reasonably need. Councils are not expected to anticipate the needs of every individual who may use its services, however.
17. The Ombudsman cannot find that a council has breached the Equality Act. However, we can find a council at fault for failing to take account of their duties under the Equality Act.

Special contact measures

18. The Council’s special contact measures (SCM) policy and procedures sets out how it will respond to what it considers to be unreasonable behaviour. Examples include:
• Disrespectful or discourteous behaviour, like shouting, swearing, making threats, or alleging impropriety.
• Obsessive and repeated contact, the volume of which causes harassment or disproportionate demand.
• Making unjustified complaints about staff trying to deal with the matter.
• Continually raising concerns through inappropriate channels.
• Raising numerous or detailed queries not relevant to the main issue or pursuing parallel complaints.
• Making excessive demands on Council resources.
19. The Council will not treat a person’s behaviour as unreasonable if they are rising legitimate queries or trying to challenge a decision. However, the Council may consider the behaviour unreasonable if a person persists with a course of communication after the Council has indicated it has done all it can to assist, or if the person becomes aggressive, abusive, or insulting.
20. If a person shows unreasonable or unreasonably persistent behaviour, the Council’s first step is to send a written warning, asking the person to moderate their behaviour. The Council should also make clear how it will deal with any legitimate issues raised.
21. If a person does not alter their behaviour after a warning letter, the Council’s second step may be to impose restrictions, such as:
• Appointing a single point of contact.
• Restricting the frequency and method of contact (i.e. only accepting written correspondence, or only accepting emails to a specific inbox).
• Implementing an email divert.
• Legal action.
22. The Council will write to the person explaining what restrictions it has applied and how long they will last. This will be subject to review after six months.

What happened

23. I have summarised below some of the key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
24. Mr X lives adjacent to a road maintained by the Council. The road serves some residential houses and farmland. A drainage ditch runs alongside the road.
25. Part of the drainage ditch is the responsibility of an adjacent farmland owner. Another part of the drainage ditch is the responsibility of a housing developer.
26. Mr X said the drainage ditch is in poor condition and is overgrown. He has provided several photographs showing the drainage ditch full of water, with water overflowing onto the road on some occasions.
27. He also provided photographs showing his driveway flooded and a large pool of water outside his house.
28. As early as 2012, Mr X complained to the Council about the drainage ditch. He said the ditch, and a drainage culvert which carries water under the road, was blocked. This meant water could not drain away and caused it to back up and flood onto his driveway. The water did not enter Mr X’s house, but he said it was damaging the foundations, causing cracks to appear.
29. In March 2013, the Council told Mr X it searched its archives for details of the culvert and pipe work and concluded it does not belong to the Council. It said the culvert is the responsibility of the drainage ditch owner, and Mr X needs to contact them about maintenance.
30. Mr X said he tried to take legal action against the Council in 2014, due to the damage the floodwater caused to his home, but the Council denied ownership or responsibility for the blocked culvert.
31. Mr X provided a surveyor’s report into the flooding and damage caused to his home. The report states vertical cracks have appeared in the mortar and brickwork of Mr X’s home, with corresponding vertical cracks to the plaster inside the house. No odour or dampness was detected.
32. The surveyor is a chartered engineer, as well as being a fellow of the institute of civil engineers, a fellow of the institution of highways and transport, and a fellow of the geological society.
33. The surveyor believed the roads’ drainage system is inadequate and ineffective – meaning it overflows during prolonged high intensity rainfall. The surveyor considered this was due to a blockage in the pipe, not enough outlet channels, and the drainage ditches being badly maintained and overgrown.
34. The Council carried out water jetting of road’s culvert, drains and gullies in 2016, 2017, and 2019 to try to clear blockages.
35. In 2017, Mr X complained to the Ombudsman about the Council’s decision to place him in SCM due to his persistent complaints about flooding.
36. In July 2017 the Ombudsman found fault with the way the Council applied its SCM policy to Mr X.
37. The housing developer emailed the Council in February 2018. It referred to a survey it undertook in 2017 which identified an outfall pipe from the drainage ditch was blocked under the highway. The housing developer tried to clear the blockage to do a closed-circuit television (CCTV) survey, but this was unsuccessful. The housing developer suggested the issue was outside of its land and was within the highway.
38. The Council considered the housing developer’s report was inconclusive about the location of the blockage. It did not investigate further at that time.
39. Mr X wrote to the Council in May 2018 alleging officers made jokes about his mental health, claimed he made up his disabilities, and used the Equality Act as an excuse for his behaviour. He asked the Council to stop this.
40. Mr X emailed a local councillor on 1 August. He said he already told the Council he has a disability. He said he was no longer in SCM and the way the Council treated him was affecting his mental health. He said he was still waiting for the Council to resolve the culvert and pipework blockage.
41. The councillor said Mr X had been informed on numerous occasions that the culvert and pipe works do not belong to the Council or highways department. They also said Mr X was still under SCM and should not use his mental health condition as an excuse.
42. Mr X wrote to the Council on 7 August explaining his disability and asking for reasonable adjustments under the Equality Act. He asked the Council to respect the protections he is entitled to and accept that he needs time to understand and consider replies. He also raised concerns about the email he received from a local councillor.
43. Mr X wrote to the Council about his disability again on 14 January 2019. He asked why the Council was not making reasonable adjustments for his condition.
44. On 19 August 2019, the Council told Mr X it had no records relating to the culvert, or the blocked pipework under the highway. The highways department reiterated the culverts in question belong to the ditch owner, who is the housing developer, and Mr X should contact them about maintenance.
45. Mr X reported the same issue with the blocked culvert again on 1 and 4 November 2019.
46. Mr X also contacted the housing developer. On 12 November, the housing developer told Mr X it carried out a survey in 2017. It found a blockage within the drainage system, downstream of the highway gully. It identified the position of the blockage to be within woodland area which it does not own. It said this blockage means water is unable to drain freely during heavy rain. It said the third-party landowner needed to carry out repairs and suggested Mr X contact the Council.
47. Mr X emailed the Council on 13 November. He asked it to act on flooding to his property. He said the housing developer told him about the survey it carried out in 2017, which highlighted blockages the Council is responsible for. Mr X said the Council failed to act on this. He raised a complaint and asked the Council to liaise with the housing developer to resolve the situation.
48. Internal Council emails from 10 December state the matter has been ongoing for years and has ‘slipped the net’. The Council decided to assign a single point of contact for Mr X, in its legal department.
49. An officer from the Council’s legal department emailed Mr X on 18 December. They said they were Mr X’s single point of contact, and he must not contact anyone else.
50. Mr X asked the Council if it had placed him back under SCM. If it had, he said the Council did not follow its policy.
51. The Environment Agency contacted the Council on Mr X’s behalf on 19 December. It said it carried out Land Registry searches showing the Council owned land where the culvert is located.
52. The Council confirmed it was aware of the issue. Internal emails confirm the Council made the culvert a priority for water jetting.
53. Mr X contacted the Council in January 2020 to say the jetting did not clear the blockage. He asked what the Council was going to do and asked if it now accepts the culvert is its responsibility. He also asked if the single point of contact was under the Council’s unreasonable and persistent complaints policy.
54. Mr X reported the blocked culvert again on 9 February.
55. On 10 February, an officer in the legal department told Mr X a single point of contact is step 2 of the Council’s unreasonable and persistent complaints policy. He said it was up to the Council to decide whether that policy has been followed.
56. Internal Council emails on 13 February 2020 state that land where the potential blocked culvert is located is Council owned.
57. Mr X made further reports to the Council about the blocked culvert on 16, 24, and 25 February and 10 March.
58. On 11 March 2020, Mr X asked the Council if the single point of contact is a formal or informal arrangement. He also asked if the Council was aware of his disabilities. He said he made the Council aware previously and its actions were causing him significant distress, but it keeps saying he is vexatious.
59. The Council confirmed it is aware of Mr X’s disabilities. An officer from the Council’s legal department said the Council placed him in SCM under its policy on unreasonable and persistent complaints.
60. The Council instructed engineers to survey the road’s pipework in April. The engineers found broken pipework which needed to be excavated and an area where the pipe work had collapsed. They recommended new pipework, installation of an inspection chamber, high pressure water jetting to remove debris, and a closed-circuit television inspection.
61. Internal Council emails from 19 May state there was a lack of clarity about how Mr X should contact the Council after his single point of contact left the Council. The Council previously tried to place Mr X in SCM. It was unclear who was dealing with Mr X’s enquiries or how he should get updates. An officer said the Council had to be clear on what its process was and that did not seem to be the case.
62. Also in May, the Council sent an email to Mr X saying he is not in SCM.
63. The Council completed repair works on the broken culvert on 29 May.
64. An officer from the Council’s legal department emailed Mr X on 23 June to say all his correspondence should go through them.
65. Mr X again asked the Council for help with flooding and drainage issues on 13 August.
66. Mr X emailed the Council on 2 September. He said it continually denied responsibility for the culvert. He said in 2013 and 2014 the Council said it was not liable for maintenance or flooding to his property.
67. Mr X’s local councillor wrote to the Council on his behalf on 2 October, asking for help with the culvert and flooding issues.
68. The Council sent its final complaint response on 6 October. It said:
• The culvert is located under the highway and is the Council’s responsibility. It said it had not disputed this.
• It cleaned the culvert in 2013, 2016 and 2019. A CCTV survey from April 2020 identified displaced joints and they were repaired. Three manholes were also upgraded, and the drainage system was repaired.
• It correctly told Mr X it had no record of repairs to the drainage ditch in May 2020, because it repaired the culvert and drainage system.
• The ditch running adjacent to the road is the responsibility of its landowner. This is mainly the housing developer, then private farmland. The Council said it was currently negotiating maintenance of the ditch.
• It had been in contact with the housing developer, who now agreed to clear the ditch along the full length of their holding.
• It said its powers of control under the Land Drainage Act are permissive, so it does not have an obligation to use them. It said it would only consider using its powers where flooding was causing an immediate danger to highway users. It said there was no evidence of this.
• It had responded to 13 freedom of information requests and two complaints from Mr X during 2020. Officers had to undertake numerous searches, putting constraints on workloads and to the detriment of other service users.
• It asked Mr X to direct enquiries through a single point of contact because he repeatedly said he wanted to take legal action and he habitually contacts numerous members of staff at the same time. It said it had not formally asked Mr X to use a single point of contact, but it does have the right to do so under its relevant policy.
• It would investigate Mr X’s concerns about individual staff but would not confirm the specific outcome or any disciplinary proceedings due to GDPR.
69. The Council directed Mr X to its claims team in regards to any damage to his property.
70. The Council sent a warning letter to Mr X in October. It said he is at risk of being classed as persistent and unreasonable. It said his communication was insulting and hurtful and he made groundless inferences of impropriety. It said he refused to accept the Council’s responses and adopted a scattergun approach, with overlapping and parallel correspondence.
71. The Council contacted the housing developer on 9 November. It said there was still an issue affecting the flow of water in the ditch, with implications for nearby houses. The Council suggested the developer meet its local team and agree the required ditch floor levels.
72. The housing developer said its contractor was on site realigning the ditch. It gave the Council a copy of a survey showing the direction of flow in relation to nearby houses. The developer said it would re-survey the ditch once re-alignment works were complete.

Response to enquiries

73. The Council said there had been confusion previously about whether Mr X was reporting issues with the two culverts or the ditch.
74. The Council said it is responsible for two culverts in the area. Culvert one is under the highway (maintained by its highways team) and culvert two is on land South of Mr X’s home (maintained by its property team). The Council accepts responsibility for these two culverts and said it has not disputed this.
75. The ditch running adjacent to the highway is the responsibility of the landowner and has not been regularly maintained. It is mainly owned by the housing developer before running onto private farmland.
76. The Council assumes the allegations of flooding relates to the culvert two. It said there is no evidence of a flooding problem with culvert one.
77. The Council said Mr X has not given any evidence of damage to his home, so it told him to contact its claims team.
78. The Council surveyed culvert two in April 2020. It found displaced joints and a blockage. It arranged for repairs to be completed in September 2020. It also upgraded three manholes and repaired the drainage system.
79. The Council said it asked the housing developer to clear their ditch to reduce the risk of flooding to the highway. The housing developer agreed and carried out work in October 2020. The Council also asked for further works to be carried out in November 2020. The housing developer employed a contractor to produce an investigation report of the ditch.
80. The Council told me it does not have a regular maintenance regime for culvert two. Its maintenance budget is limited, and it must deal with issues across the whole Borough. It cannot afford regular inspections of every culvert in its boundaries. It deals with problems as they are reported.
81. The Council said drainage ditches are not included in its safety inspections as they don’t form part of the adopted highway so are not the Council’s responsibility. However, if private ditches cause a safety hazard to the highway the Council can take action (including asking the owner to carry out repairs).
82. The Council said its property team did not investigate culvert two before April 2020 because it thought the highways team had dealt with the issue.
83. The Council said Mr X is not under SCM but has been asked to direct his enquiries through a contact within the Council’s legal team. This is because he repeatedly said he wanted to take legal action.
84. The Council said it made officers aware Mr X was not in SCM in January and November 2020.
85. The Council said it sent Mr X a warning letter on 22 October 2020, not only because of his insulting and hurtful comments, but also because he made groundless inferences of impropriety, and because of the extremely high volume of correspondence he sent about matters which had already been addressed.
86. The Council said the burden of responding to Mr X’s requests causes a feeling of harassment and disproportionate demand on the officers who have to respond, to the detriment of other service users. One member of staff reported this, hence why the relevant head of service wrote to Mr X.
87. The Council said officers do not recall Mr X raising concerns about disability or asking for reasonable adjustments. It said it will consider this going forwards if Mr X gives details of what adjustments he needs.

Analysis

Flooding

88. The Council told me it accepts responsibility for two culverts in the area and has not disputed this. However, the evidence I have seen shows the Council repeatedly denied ownership of the culverts and pipework connected to the highway. This included when Mr X tried to make a claim against the Council’s insurers for damage to the foundations of his home.
89. The Council also told me it cannot afford regular inspections of every culvert it owns. It deals with problems as they are reported. Mr X has been reporting problems for several years, but the Council did not take action. The Council had a report from the housing developer in 2017 which suggested broken or blocked culverts and pipework on its land, but again the Council did not take action. Faced with a report of this nature we would expect the Council to undertake further investigation. The Council failed to do so. That was fault.
90. While I appreciate the Council’s property team believed the highways team was dealing with the matter, the Council ultimately remained responsible. It should ensure each department is properly informed.
91. This has been a long-standing issue and I have not seen justification for why it took the Council several years to properly investigate.
92. On the evidence seen, the Council is now taking steps to oversee repairs and maintenance. It carried out some repairs to the culverts and pipe work in 2020 and liaised with the housing developer to maintain the drainage ditch.
93. Mr X said the problem with the culvert remains because the repairs were inadequate. I am not a drainage expert. I cannot say whether the repairs are adequate or exactly what measures the Council should take. That is for the Council to determine. No area can be completely free from flooding, and some areas are more susceptible than others.
94. Mr X is unhappy with the standard of repairs the Council carried out. He thinks they are inadequate. I am not a drainage expert. It is not my role to assess the effectiveness of the Council’s repairs or maintenance. Mr X will need to approach the Council or seek expert opinion if he wishes to pursue that element of his complaint further.

Equality Act and reasonable adjustments

95. Mr X did not clearly express to the Council what reasonable adjustments he wanted. However, the Council was aware of Mr X’s disability, and Mr X repeatedly made it clear he wanted the Council to recognise this.
96. Apart from one letter from the Council where it simply acknowledged being aware of Mr X’s disability, I have not seen evidence the Council engaged with Mr X at all about his condition or how it affected him. The Council should have asked Mr X to explain his condition so it could consider whether it needed to make any reasonable adjustments.
97. The Council’s duty under the Equality Act is a positive one and is anticipatory. Mr X raised the issue enough times, but the Council’s response was inadequate. On the evidence seen, the Council failed to properly consider Mr X’s disability and whether it needed to make any reasonable adjustments. That was fault.

Special contact measures

98. The Council told me Mr X is not under SCM. The evidence seen shows the Council gave Mr X confusing and contradictory information about this. At times the Council told Mr X he was under SCM, and it correctly followed its policy when putting this in place. At other times the Council told Mr X he was not under SCM. Instead it said he was given a single point of contact.
99. Given Mr X’s previous complaint to the Ombudsman and knowing about his disability and tendency to send regular correspondence, the Council should have managed the situation far better. It should also have ensured officers knew the situation.
100. While the Council wanted Mr X to direct his enquiries through its legal department, because he threatened legal action, it needed to better communicate this to him. The Council did not simply make an informal request for Mr X to direct his enquiries through its legal department. It said he was not permitted to contact other officers.
101. As Mr X rightly pointed out, a single point of contact is a measure under the Council’s SCM policy. Mr X rightly pointed out that the Council must follow its policy about unreasonable contact in order to impose a single point of contact. An officer said the Council had done that, but I have not seen any evidence it did.
102. The Council recently sent Mr X a warning letter under its SCM policy, asking him to modify his behaviour. The Council said the matter he was raising has been resolved. However, Mr X does not consider it is resolved because he still experiences flooding. The Council must let Mr X continue to report such issues.
103. The Council did follow its SCM policy correctly this time and gave other reasons besides Mr X’s high volume of contact. Mr X should therefore be mindful of the way he reports new issues to the Council.
104. I consider this is also relevant to Mr X’s disability and possible need for reasonable adjustments. We would expect the Council to consider whether Mr X is genuinely being unreasonable and persistent or whether he is struggling to communicate with the Council.

Injustice

105. I have considered the impact the Council’s fault had on Mr X and whether he suffered any injustice.
106. The Council’s repeated denials of responsibility and failure to properly address the problems with the culverts caused Mr X avoidable frustration. He was also put to time and trouble contacting other organisations for help when the Council was responsible all along.
107. The Council’s failure to properly engage with Mr X about his disability and reasonable adjustments caused him further avoidable frustration.
108. The confusing and inconsistent information the Council gave Mr X about SCM also caused him avoidable frustration.
109. The Ombudsman has issued guidance on remedies. Frustration and time and trouble are classed as distress under this guidance. The Council has caused Mr X avoidable distress over a period of several years. That is Mr X’s injustice.
110. Mr X said the flooding caused structural damage to his house, and he has a report from a surveyor. The damage is not something the Ombudsman can assess. Both the structural damage, and the impact of the flooding, need further consideration by a suitably qualified expert.

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Agreed action

111. Within four weeks of my final decision, the Council agreed to:
• Apologise to Mr X for the failings I have identified.
• Set out plans for how it intends to address the issues experienced around its SCM policy.
• Reach out to Mr X to understand his disability and what reasonable adjustments he would like the Council to make in future.
• Instruct its insurers to consider Mr X’s claim for damage floodwater caused to his home. If necessary, the Council’s insurers should appoint a suitably qualified expert to assess the damage and determine its cause.
• Pay Mr X the sum of £600 to recognise the distress its faults caused. This is made up of £300 for not properly investigating the flooding problems over several years, £150 for failing to properly follow its SCM policy, and £150 for failing to properly engage with him about his disability.

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Final decision

112. I have completed my investigation. The Ombudsman found there was fault causing injustice when the Council failed to properly investigate the blocked culvert, when it gave inconsistent information about special contact measures, and when it failed to properly engage with Mr X about his disability.

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Investigator's decision on behalf of the Ombudsman