The Ombudsman's final decision
Summary: Mrs X complains about the Council’s response to reports of flooding outside her home and about how it responded to her complaints. We have found the Council at fault for its record keeping, the time taken to investigate Mrs X’s complaint, and some of its communication with Mrs X. These faults caused Mrs X avoidable frustration and inconvenience. We have made recommendations to remedy the unaddressed injustice caused. The Ombudsman cannot determine responsibility for resolving the flooding, which is under investigation and is a matter of professional judgment.
The complaint
Mrs X complains about the Council’s response to reports of flooding water outside her home. Mrs X says the Council has not addressed her concerns, instead pressuring her to have a vehicle crossing installed to resolve the problem, at significant expense. Mrs X also says the Council did not respond to correspondence and mishandled her complaint. She says this caused frustration, distress and inconvenience. Mrs X is seeking a resolution to the problem, compensation, and an apology.
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)
How I considered this complaint
I considered information provided by Mrs X and discussed the complaint with her.
I considered information provided by the Council.
Both Mrs X and the Council had an opportunity to comment on a draft version of this decision. I considered any comments received before making a final decision.
Relevant guidance, legislation and policy Highways Act 1980 Section 184 of the Highways Act 1980 (the Act) sets out the law on vehicle crossings being built over footways, pavements and verges.
The Act says a highways authority can serve a notice on the owner or occupier of a property, proposing to build a vehicle crossing. A highways authority can do this when the occupier regularly crosses the footway to and from the property in a vehicle, from a road maintained by the highway authority. The Act says where such a notice has become effective, the authority may recover reasonable expenses from the owner or occupier.
Principles of Good Administrative Practice The Ombudsman published the Principles of Good Administrative Practice (the Ombudsman’s Guidance) in 2018. This sets out the Ombudsman’s benchmark for the standards expected when investigating local authorities’ actions.
The Ombudsman’s Guidance stresses the importance of being open and accountable, explaining the reasons for decision making, and keeping proper, suitable records.
Council’s Complaints Policy and Procedure The Council’s Complaints Policy and Procedure (Complaints Policy) sets out how the Council will consider and respond to complaints made at each stage of its procedure. The timescales given for responses at each stage are: Acknowledgements: three working days.
Stage 1: 10 working days.
Stage 2: 25 working days.
Stage 3: 30 working days.
Background
Below is a summary of the key events in this complaint. It is not an exhaustive chronology showing every occurrence.
In April 2021, Mrs X noticed a foul smell and water flooding from under the pavement outside her home. She contacted the utility companies responsible for water and drainage delivery. The companies conducted tests, which produced conflicting results. Mrs X says she was told the problem was not coming from inside her property boundary and might be originating from the public highway. In May 2021, Mrs X contacted the Council to report the problem.
Mrs X says when she contacted the Council to report the problem, the Council suggested it was Mrs X’s fault for driving across the pavement to access her driveway. Mrs X says the officer taking the call focused on this, rather than on the substantive issue she was trying to raise. A few days later, Mrs X received a letter from the Council, informing her she should not drive across the pavement without a vehicle crossing. The letter gave instructions on how to apply for a vehicle crossing. The Council asked Mrs X to respond by a certain time and raised the possibility of enforcement action.
Mrs X complained to the Council about the tone of the letter, which she found threatening. Mrs X said she would not cross the footway again and the letter had caused her distress.
In June 2021, the Council responded to Mrs X’s complaint. It said it had asked its contractor to dig a trial hole so it could investigate the matter. It had arranged for the utility companies to take water samples as part of this investigation. The Council apologised for the anxiety the letter had caused and said it had since changed the wording, so this would not happen again. Later that month, Mrs X applied for a vehicle crossing.
In July 2021, Mrs X contacted the Council, asking for an update. She said the problem was getting worse: the smell was bad and there were drain flies in and around her house. She said she had asked a private drainage company to investigate as well, and would take further action if the matter was not resolved. Mrs X said the Council had not dug a trial hole and she was unsure whether a vehicle crossing would resolve the issue. She had reservations about paying the fee for the crossing.
Mrs X contacted the Council three more times in July and August 2021, without receiving a response. She said she had since paid £3000 for a crossing, as she felt she had no alternative. She said the Council had left its equipment outside her house and she did not know what the next steps were.
Mrs X asked the Council to escalate her complaint in August 2021. She said: the pavement was weak and dangerous; she had paid money for a solution that would not help address the problem; the matter had impacted her physical and mental health; nobody had responded to her emails; and the Council had not dug the trial hole.
Between September 2021 and January 2022, the Council sent Mrs X six updates about the progress of her escalated complaint. In these updates, the Council said: there was a high workload, with a backlog of cases, and an investigator had not yet been assigned; it dealt with complaints it received in chronological order; and the impact caused by Covid-19 was still affecting resources.
In December 2021, the Council said it had received the information it needed to assess Mrs X’s complaint, but it might need more information before it could reach a decision. In January 2022, it informed Mrs X it had not yet completed its assessment and it may need to get more information before it could respond in full.
In each of these updates, the Council offered an apology for the time taken to allocate Mrs X’s complaint to an officer, investigate and provide a substantive response.
The Council responded to Mrs X’s stage two complaint in February 2022, again apologising for the extended delay. It also said: when inspecting the site, an officer had suggested Mrs X may have damaged the footway by driving across it; it understood a trial hole had been dug, but it did not have the findings of any investigation, because the officers involved had since left the Council without a proper handover; it proposed digging a second trial hole to investigate the issue; it apologised for any distress the letter had caused and confirmed the wording had been changed; and it needed to make Mrs X aware that driving across the footway without a vehicle crossing was an offence. It recommended a vehicle crossing if Mrs X wanted to park on her drive in this way. It said it would not pay compensation, citing budgetary considerations.
Mrs X requested the Council escalate her complaint to stage three of its complaints procedure in February 2022.
In April 2022, the Council dug a new trial hole. It decided the issue was not for the Council to address, but was instead the utility companies’ responsibility. Mrs X repeated her request for the Council to escalate her complaint, as she had not received a reply. She also referred her complaint to the Ombudsman.
In May 2022, the Council wrote to Mrs X to say it would not escalate her complaint. That same month, the Council visited the site with one of the utility companies. It documented conducting several tests, finding no evidence of a leak. It said it suspected there may be a ground water issue.
Analysis Council’s efforts to investigate flooding The Council agreed in June 2021 to dig a trial hole to investigate the cause of the flooding. Mrs X repeatedly sought updates about this in July and August 2021, but did not receive a reply, prompting her to escalate her complaint to stage two of the Council’s Complaints procedure. It took until February 2022 for the Council to confirm it could not locate the results of the original trial hole investigation. The Council did not dig a new trial hole until April 2022.
The Ombudsman’s Guidance stresses the importance of proper record keeping and of councils explaining the reasons for their decisions. I therefore consider the Council is at fault for not properly recording the results of the original trial hole investigation, and for not relaying this information to Mrs X when it could have done so. I also consider the Council is at fault for the time taken to provide an update and take further action.
I consider these faults caused Mrs X uncertainty and frustration. Mrs X had to continually chase the Council for an update in July and August 2021, when this should not have been necessary. It was also for some time unclear what steps were being taken to investigate Mrs X’s concerns.
In its stage two complaint response, the Council upheld this aspect of Mrs X’s complaint. It said there had not been a sufficient handover when previous staff departed the service. As a remedy, it proposed to dig the trial hole again. In comments to me, the Council said it could not have told Mrs X about the loss of the trial hole results sooner, as this was not known until the Council completed its stage two complaint investigation.
I note the Council’s acknowledgement of the fault and proposal to repeat the trial hole exercise. While both are appropriate, I am of the view the Council should provide an apology for the fact the trial hole results were not adequately recorded and for the avoidable frustration this caused Mrs X. Mrs X may not have needed to escalate her complaint to the second stage of the Council’s Complaints procedure, had the original results been adequately recorded and shared with Mrs X in 2021.
Mrs X says she had to commission private drainage contractors because the Council did not reply or act promptly. I understand this to have been in July 2021, approximately three weeks after the Council first said it would investigate. Mrs X is seeking reimbursement of these costs.
The Council had recently committed to investigating and would need some time to inspect and compile its findings. Given this, to have arranged a private inspection without further input from the Council would have been premature. I have not recommended the Council reimburse the costs associated with the private inspection carried out at the time for this reason.
Complaint handling and communication Most of Mrs X’s contact with the Council about this issue has been through its Complaints procedure. The Council’s Complaints Policy outlines the timescales for responding at each stage of its complaints process. It did not respond to its stage two complaint within its prescribed timescale of 25 days, taking approximately six months to respond. This is fault. It also did not acknowledge Mrs X’s request for a stage three complaint within three working days, not reviewing this until Mrs X contacted it again approximately two months later. This is also fault.
The Council has told me it provided regular updates to Mrs X about the delay in completing an investigation of her complaint at stage two of its Complaints procedure. The Council has provided evidence it sent Mrs X six updates between September 2021 and January 2022, explaining the reasons for the delay and apologising for the inconvenience this would cause. It also acknowledged the delay in its stage two complaint response.
The Council’s regular updates, explanations and apologies were appropriate. These updates provided a partial remedy to the injustice found, by addressing the uncertainty Mrs X may have felt about her complaint being investigated.
However, I am of the view the time taken to fully investigate and respond to the complaint remains excessive. The apology has not fully remedied the frustration this delay caused Mrs X.
In addition, Mrs X requested her complaint be escalated because the Council did not reply to emails she sent in July 2021. The Council’s second stage complaint response did not address this lack of reply. The Council told me Mrs X never explicitly raised this as an issue when she escalated her complaint and so it was not addressed. However, Mrs X highlighted the Council’s lack of reply as an issue when she escalated her complaint in August 2021. She included copies of emails to which she had not received a response, and emails she had sent to her ward councillor to help obtain a resolution.
I consider the Council not providing timely responses caused Mrs X avoidable frustration. Had the Council responded to earlier emails, Mrs X may not have needed to escalate her complaint and contact her ward councillor.
Mrs X asked the Council to consider her complaint at stage three of its complaints process. The Council wrote to her and said it would not consider the matter at stage three, because: Mrs X had not provided medical evidence to support her assertion the matter had negatively impacted her health; and the Council believed the utility companies were responsible for addressing the issue.
I have seen no indication Mrs X was asked to provide medical evidence of the impact on her wellbeing. Mrs X has told me she was not asked to provide any at any point. Mrs X could not have known she needed to provide this evidence if she had not been told. I have found the Council at fault for not fully considering Mrs X’s request as a result.
I cannot, however, say this caused Mrs X an injustice. The Council had other reasons for not accepting Mrs X’s complaint for a stage three review. I cannot therefore say whether the Council would have investigated the complaint at stage three of its procedure in any event. Mrs X had already been given the right to refer her complaint to the Ombudsman for an independent investigation at stage two of the Council’s complaints procedure.
Vehicle crossing and damage to pavement Mrs X says the Council focused on the fact she did not have a vehicle crossing, rather than the issue of flooding water outside her home. She says the Council sent a threatening letter and blamed her for the issue. She says she felt pressured to get a vehicle crossing installed, at considerable cost, to fix the problem.
Correspondence from 2021 shows Mrs X had reservations about paying for the vehicle crossing as a method to address the problem. Mrs X eventually did pay in advance for a vehicle crossing but, due to a lengthy delay in the work being scheduled, requested the Council refund her money. Mrs X told me the Council refunded the money she paid in late 2021. No crossing has been installed.
In its stage two complaint response, the Council said the Act allowed it to serve a notice proposing to install a vehicle crossing under the circumstances outlined in paragraph 7. This is correct and I have not found fault.
I note the Council’s apology for the distress caused by the letter, the change in wording for future enforcement letters, and the reimbursement of the money paid towards the crossing. I consider these actions represent a suitable remedy for this aspect of the complaint. The Ombudsman could not achieve more than this for Mrs X.
Mrs X says she has reported the uneven pavement as a possible trip hazard to the Council. The Council has confirmed to me it is taking action to address this.
Liability for resolving flooding At the time of writing, efforts to identify the cause of the flooding are ongoing. Mrs X told me the Council refilled the trial hole and referred the matter back to the utility companies to address. Mrs X asked her insurers to investigate. A recent report issued indicated that no leaks were identified, although there were some limitations to the extent of the tests carried out. This was due to issues with the internal and external stop valves to the property.
The responsibility for resolving the flooding has not yet been established. The Ombudsman cannot decide who is responsible, which is a matter of professional judgment and is still under investigation.
Agreed action
Within four weeks of the final decision being issued, the Council has agreed to: provide a written apology to Mrs X for not adequately recording the results of the first trial hole exercise and the avoidable frustration this caused; and pay Mrs X £150 in recognition of avoidable frustration Mrs X experienced when pursuing this matter as a complaint.
Final decision
I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy that injustice.
Investigator's decision on behalf of the Ombudsman