The Ombudsman's final decision
Summary: Mr X complained the Council failed to act to prevent frequent surface water flooding on the road outside his property causing flooding to his property. Mr X also complained the Council failed to clean the road of debris after flooding events and failed to provide responses to his complaint. We found fault with the Council for its delays in handling Mr X’s complaint and escalating its investigations into the flooding. The Council agreed to apologise to Mr X and pay him £200 for the distress, frustration and inconvenience caused.
The complaint
Mr X complained the Council failed to act to prevent frequent surface water flooding on the road outside his property causing floods to his property.
Mr X also complained the Council failed to clean the road of debris after flooding events and failed to provide responses to his complaint.
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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
I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
Mr X and the Council had opportunity to comment on my draft decision before I made my final decision.
What I found
Flood management Section 19 of the Flood and Water Management Act 2010 says the lead local flood authority must, to the extent it considers necessary or appropriate, investigate a flood. This investigation will decide which risk management authorities have functions to tackle the flood and whether these authorities have exercised this function.
Sutton Council is the lead local flood authority in its administrative boundary. The Council is also responsible for any highway gullies and drains and any flood related issues associated with these.
Thames Water Utilities Ltd (Thames Water). is responsible for maintaining the public sewer network including surface water, foul and combined sewers and drains which service more than one property. Thames Water is responsible for flooding caused by an increased volume of water in the public sewers.
The Council’s policy on flood management says that it decides whether a flood risk investigation is needed based on the following criteria: If internal flooding of one property has been experienced on more than one occasion.
Where internal flooding of five or more properties has been experienced during a single flood incident.
Where critical infrastructure has been affected by flooding.
The Council says it also has discretion to carry out a Section 19 investigation if the source of the flooding is ambiguous.
The Council says its investigation will identify which risk management authorities have a flood risk management function and detail what each authority has, or should have done, in response to the flood incident.
Section 19 says the Council must publish the results of its investigation.
Council complaints procedure The Council says it will try to resolve a person’s complaint at the first stage of contact. If the Council cannot resolve the complaint at the first stage of contact it will put a person on to its complaint procedure.
The Council says it will acknowledge a complaint within five working days and provide a response within twenty working days at Stage 1 of its process.
The Council says a person can appeal the Stage 1 complaint response. One receipt of an appeal the Council will provide a response within a further twenty working days at Stage 2.
What happened Mr X experienced a flood on his street on 12 July 2021. Mr X’s neighbour reported this matter to the Council who attended the street, checked the gullies and drains and determined that all were operational. The Council notes expressed concerns the drainage system could not cope with the volume of water which fell.
Mr X experienced a further flood on 25 July 2021. Mr X reported this matter to the Council who attended and cleared a blockage in the surface water sewer system to relieve the flood. The Council received 36 reports of internal flooding to residents properties in the area surrounding Mr X’s street on this date.
Following this flood, Mr X complained the Council did not collect his brown waste bin despite putting it out the day before. Mr X said he filled this bin with waste from the flood. The Council responded to advise it was not due to collect Mr X’s brown bin on this date.
Mr X reported an overflowing drain to the Council on 7 August 2021. The Council attended and cleared debris from the surface water sewer system to relive the blockage. The Council received 5 reports of internal flooding to residents properties in the area surrounding Mr X’s street on this date.
At the start of October 2021, Mr X reported a further flood on his street to the Council. Mr X said there appeared to be a problem with the drains on his street. The Council said it acknowledged Mr X’s contact as an initial complaint contact and would respond by 8 October 2021.
The Council attended Mr X’s street and checked the surface water sewer system and found no problems.
The Council attended Mr X’s street in response to the report of a further flood at the end of October 2021. The Council cleared a blockage and completed an inspection of the road profile but noted no issues. The Council jetted its gullies which performed correctly. The Council decided the flooding issues were likely attributable to a blockage in the Thames Water sewer system or because of a lack of capacity. The Council contacted Thames Water and requested it investigate the issue and jet through its system.
Thames Water attended the street following the Council’s contact and jetted through its sewer system.
Mr X complained to the Council again following the second October 2021 flood. The Council told Mr X it had asked Thames Water to investigate the issues.
The Council provided its initial response to Mr X’s complaint on 9 November 2021. The Council explained how it had handled the reported floods in October 2021 and asked Mr X to continue to report any issues with the gullies.
Thames Water attended the street in November 2021 and following initial investigation decided it needed to complete CCTV works to discover the issue.
Mr X wrote to the Council on 21 November 2021 to dispute the informal complaint response. Mr X complained the Council delayed in providing a response to his complaint, failed to consider the full extent of the flooding issues and failed to identify the cause of the repeated floods. The Council said it would provided a response to Mr X within twenty working days at Stage 1 of its process.
At the start of December 2021, Thames Water completed CCTV works and found no defects within its sewer system. However, Thames Water did find a build-up of silt which required a cleanse of its system.
The Council followed up with Thames Water in December 2021 and January 2022 about completion of the cleanse of the system.
Mr X reported a further flood to the Council at the start of January 2022. Mr X complained the Council had failed to respond to his complaint and complained about repeat flooding since July 2021.
The Council responded to advise Thames Water had investigated the issues and were due to complete a cleanse of their system.
The Council contacted Thames Water again in February 2022 for an update on the cleanse of their sewer system. Thames Water said it needed to reschedule the cleanse because of more urgent issues. The Council told Mr X about the delay with Thames Water completing the cleanse before issuing its Stage 1 complaint response.
At the end of May 2022, Thames Water completed the deep cleanse of its water system and checked all pipes were running free.
The Council noted that should further floods occur on Mr X’s street it will need to revert to Thames Water as this would be demonstrative of inadequate drainage capacity.
Analysis Addressing individual flood events The Council has evidenced it responded to each individual flooding event reported to it by residents. On each event, the Council has cleared surface water and removed blockages preventing water from draining.
The Council also completed inspections of its gullies and sewer system at the start of July 2021 and October 2021. The Council followed this up by jetting its own gullies later in October 2021 which confirmed no issues with its gullies.
The Council has taken suitable steps to attend individual reports of flooding to address the isolated flooding issues. I do not find fault with how the Council responded to flooding events on an individual basis.
Thames Water While the Council addressed the individual flooding events without fault, the Council did not contact Thames Water until 21 October 2021.
The Council received reports of the flooding issues on Mrs X’s street on 12 July 2021. In this instance, the Council took suitable action to address the flooding as an isolated event and ensured its part of the system was operational. I would not expect to see the Council take further action on this visit.
However, the Council received reports of five more flooding events from 12 July 2021 until 21 October 2021. The Council failed to complete further checks of its system until the start of October 2021, finding no issues. The Council then delayed a further three weeks before contacting Thames Water, after another flooding event.
The Council delayed in escalating this matter to Thames Water for two and a half months, this delay was fault.
Thames Water attended within 72 hours and jetted through its systems following escalation from the Council. However, Thames Water jetting through its system did not resolve the flooding issues as further floods have occurred since this point. While the Council delayed in escalating this matter to Thames Water, this has not directly resulted in Mr X experiencing further flooding issues. This is because Thames Water’s initial actions would unlikely have prevented the flooding events Mr X experienced from July 2021 to October 2021.
Thames Water took until May 2022 to complete a deep cleanse. The Council has shown regular contact with Thames Water to chase up further action from it. I do not find fault with the Council since October 2021, as they can only request action from Thames Water. The actions of Thames Water, and any delays associated with its actions, are outside the remit of the Ombudsman.
Section 19 investigation The Council’s policy on flood management says one of the criteria in which it will complete a Section 19 investigation is where there was internal flooding of five or more properties during a single flood incident. This occurred on 25 July 2021.
Despite the flood incident on 25 July 2021 meeting the Council’s criteria for a Section 19 investigation, the Council failed to raise a Section 19 investigation until 1 February 2022.
The Council says it wanted to deal with all flooding complaints first to ensure it captured the full information before starting the Section 19 investigation. While the Council’s explanation is understandable, taking six months to raise a Section 19 investigation following the criteria being met is fault. This fault has delayed a detailed investigation outlining what actions the Council, and other relevant authorities, need take to address the flooding issues.
While this delay is fault, this has not caused a significant personal injustice to Mr X. The reason for this is the Section 19 investigation has taken seven months to complete. The flooding events impacting Mr X all occurred within seven months of 25 July 2021. Even if the Council raised the Section 19 investigation on the earliest opportunity, on 26 July 2021, the Section 19 investigation would not have been completed in time to address any further flood events.
The Council has now taken the correct steps in completing a Section 19 investigation which is due for publication shortly. This investigation will detail the actions the Council should take to address the long-term issues related to flooding on Mr X’s street.
The recommendations outlined in the Section 19 investigation have been reached by a third party specialist in conjunction with the Council.
The Ombudsman cannot question a professional decision when there is no evidence of fault in how it was made, unless it is considered unreasonable. The test for ‘reasonableness’ in administrative law is very strict. The courts have held that a decision made by a public body or its officers will only be unreasonable if it is ‘So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’ (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948]).
I cannot find fault with the outcome of the Section 19 investigation in the circumstances of Mr X’s complaint. The Ombudsman must also allow the Council opportunity to put in place the recommendations from a Section 19 investigation.
Refuse collection Mr X complained the Council failed to collect his brown general waste bin following the second flood in July 2021.
Mr X presented his brown bin for collection but the Council was scheduled to collect his recycling waste bin on this week. The Council waste crews will only collect the scheduled bin and not any extra bins presented.
While Mr X has argued this bin was full of waste caused by the flooding, the Council waste crews cannot put this waste in the recycling bin lorries as this will contaminate the recycling waste.
I do not find fault with the Council for failing to collect Mr X’s brown general waste bin.
Complaint handling The Council’s policy on complaint handling says it will try to resolve a person's complaint at the first stage of contact as an informal response.
Mr X officially lodged his first complaint at the start of October 2021. The Council took until 9 November 2021 to provide its informal response to Mr X. The Council has no set timescales on providing an informal response but promised to provide this response by 8 October 2021. The Council failed to meet this timescale by over a month; this was fault.
Mr X disputed the informal response on 21 November 2021 and requested consideration of his complaint at the next stage. The Council’s policy says it will provide a response at Stage 1 of its complaint process in twenty working days. The Council also promised to meet this timescale on 23 November.
The Council failed to provide the Stage 1 complaint response by the deadline of 20 December 2021. The Council took a further two months beyond this deadline to provide the Stage 1 complaint response; this was fault.
Agreed action
Within one month of the Ombudsman’s final decision the Council should: Apologise to Mr X and pay him £200 for the delays in handling his complaint, delays in escalating the flooding issues to Thames Water and delays in raising a Section 19 investigation. All of these delays combined to cause Mr X distress, frustration and inconvenience.
Final decision
There was fault by the Council as the Council has agreed to my recommendation, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman