Summary: While carrying out an investigation into Ms B’s drainage, the Council failed to keep her informed of its visits and actions. The Council left a dye bag at Ms B’s property which her dog brought into her house and damaged her carpet, the Council also damaged a gully grate. The Council failed to provide information Ms B asked for, which was a reasonable request, without the need for a formal Freedom of Information request. The Council failed to keep adequate records. The Council’s faults caused Ms B worry, and she had the time and trouble of pursuing an insurance claim, Freedom of Information request, and complaint. The Council will apologise, pay Ms B £250, and remind officers of the importance of keeping clear records, and sharing relevant information with its customers.

The complaint

1. The complainant, who I will call Ms B, says the Council conducted investigations on her property without telling her. The Council damaged her property during those investigations; the amount paid by the insurance company does not cover the damage to her carpet. The Council issued a legal notice based on incorrect information; the legal notice caused Ms B distress. The Council would not share the information it relied on that her drain was damaged and causing problems. Ms B had the time and trouble of instigating her own investigation (via Northumbria Water) and proving the Council was wrong. The Council did not tell her it had withdrawn the legal notice or apologise for wrongly serving it. The Council failed to deal with Ms B’s request under the Freedom of Information Act.

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What I have investigated

2. I have investigated how the Council conducted its investigation into drainage issues, and how it decided to serve Ms B a formal notice. The end of this statement explains parts of the complaint I could not investigate.

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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 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. 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. I considered information from Ms B, including during a telephone conversation. I considered information from the Council in response to my enquiries.
7. Ms B 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

8. Ms B’s neighbour complained to the Council they were experiencing flooding at their property which they suspected came from Ms B’s property. The neighbour completed a survey of their drain and Ms B’s drain, without telling Ms B.
9. The Council wrote to Ms B, advising of work she should complete at her property to avoid causing a nuisance to her neighbour. Ms B complied.
10. The Council visited Ms B’s property without telling her, it inspected the external area and put dye down her drain. The officer left a bag of dye, which Ms B’s dog brought into the house. The dye bag burst and damaged Ms B’s carpets. Ms B made a claim to the Council’s insurers and received a payment. The officer also damaged the gully grate. The Council told Ms B she would also need to claim through its insurers for that damage, but eleven months after the incident the Council replaced the grate.
11. Ms B asked the Council to tell her when it would be attending her property, despite this it still did further dye tests without telling her. The Council’s case notes do not detail the findings of the investigations, but there is reference to the dyed water entering the neighbour’s property.
12. Following this and having further checked videos provided by the neighbour and discussing the case with their manager, the officer served a formal notice on Ms B under Section 59 of the Building Act 1984. The notice was in relation to the drainage gully serving the kitchen waste pipes, defective rainwater pipe, and said the associated drainage was broken.
13. Although the first letter the Council sent Ms B warned that formal action might follow, it came as a shock to Ms B as she had done all the works suggested by the Council, and there had been no further informal communication.
14. Ms B asked the Council to provide the evidence it had relied on to serve the formal notice and show her drain was broken. The Council refused to provide the CCTV footage because it said it belonged to her neighbour as the neighbour arranged the survey. Ms B eventually received the footage following a Freedom of Information request.
15. Ms B was very upset and contacted Northumbrian Water for advice. Northumbrian Water said it would conduct a survey of the shared drain and as a gesture of goodwill would survey the drain on Ms B’s private land. The survey conducted by Northumbrian Water found no fault with its drain or Ms B’s drain.
16. The Council withdrew the formal notice it served on Ms B, and told Ms B of this action during a telephone conversation. The Council says the reason it withdrew the notice is because Northumbrian Water accepted responsibility for the drain and any repair.

Was there fault causing injustice?

17. The Council was correct to carry out an investigation when it received concerns about Ms B’s drainage. The Council has powers to enter land to examine drains, but good practice would be to inform the landowner and the resident. The Council accepts it should have made every effort to keep Ms B informed but did not and has apologised. This was fault and was upsetting for Ms B.
18. The Council was at fault when it left a dye bag on Ms B’s property and damaged her gully grate. Ms B’s dog got hold of the dye bag, brought it into the house, and damaged the carpet. The damage to Ms B’s carpets was resolved through the Council’s insurance. The Council replaced the damaged gully grate, though this took eleven months and could have been done much sooner. This was frustrating for Ms B.
19. The Council decided to serve a legal notice on Ms B after considering evidence supplied by a neighbour, carrying out its own investigations which appeared to show dye getting into the neighbouring property, and the officer discussing the case with their line manager. The Council’s view, based on this evidence, was that Ms B’s drain was defective. The officer and manager who took the decision were relevant professional officers of the Council. I can find no fault in the process the Council followed to make its decision to serve the legal notice.
20. However, I do find the case recording is not as detailed as it should be and does not clearly show how the Council reached its decision. For example, while there is evidence the Council conducted dye tests, the case notes do not record the outcome. It appears the Council relied on the neighbour’s account that dye had reached their property, but not that the Council had witnessed this first-hand. That does leave the possibility that a person could make a malicious claim against another person. There is evidence the officer discussed the case with their manager before issuing the legal notice, but not what was discussed and agreed.
21. Ms B asked for the CCTV footage the Council relied on to reach its decision, which is a reasonable request. Ms B wanted to see the evidence that her drain was defective. The Council provided the CCTV footage following a formal Freedom of Information request. This suggests the footage could have been released to Ms B sooner as it was not exempt under the Freedom of Information. The Council relied on the CCTV footage to serve the formal notice, and it did not contain personal data. The Council should be open and transparent with its customers. I can see no reason why the Council could not share the evidence with Ms B in support of the actions it had taken. This would prevent Ms B the time and trouble of pursuing a Freedom of Information request.
22. The Council says it withdrew the notice because Northumbrian Water accepted responsibility for the drain and any repair. This is not evidenced in the Council’s case notes. This is another example of poor case recording. The case notes state Northumbrian Water had processed a drainage CCTV survey due to shared roof water on the drainage. Northumbrian Water advised that a new gully pot and replacement of the damaged drainage would be arranged when the camera survey is back. This does not state that Northumbrian Water would carry out the repairs. It is highly unlikely that Northumbrian Water would accept repairs on Ms B’s private land. Its more likely than not that if Northumbrian Water’s survey showed there was damage on Ms B’s land then she would accept that evidence and get the required works done, which is Ms B’s version of events. Northumbrian Water would carry out repairs of any damage on drains in its ownership.
23. Therefore, the Council’s decision to withdraw the notice appears flawed at that point in time and should have occurred once Northumbrian Water’s survey showed there was no defects in Ms B’s drains or in Northumbrian Water’s drains. The Council’s notice required Ms B to replace the defective drainage gully and replace/repair the broken drainage. There is no evidence to show how the Council decided Ms B no longer needed to replace the drainage gully it said was defective.
24. The Council took appropriate action to settle Ms B’s claim for her damaged carpet through its insurers, to replace her gully grate, to apologise for identified failings, and spoke to the officer involved to explain they should make every effort to keep customers informed, and to ensure no dye is left on site. The Council highlighted the dye incident to other officers also to prevent recurrence.
25. Ms B says she felt persecuted by the Council. I cannot say the Council’s fault caused this injustice. The Council was correct to carry out an investigation, and I cannot say it was at fault in serving a legal notice. However, clearer communication from the Council giving some warning of intended actions, clearer communication about its investigation, and providing reasoning and evidence for serving the legal notice, could have alleviated Ms B’s worry and concern. The Council’s inadequate case recording leaves some uncertainty about whether its actions might have been different. It seems the officer might have misunderstood the communication with Northumbrian Water, and the officer has not clearly recorded the findings of their investigation.

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Agreed action

26. To acknowledge the impact on Ms B, and to prevent future failings, the Council will:
1. Apologise to Ms B for not keeping her informed, for damaging her property, for failing to evidence the reasoning for its decision to serve a legal notice, and for not keeping clear records on the case.
2. Pay Ms B £250 to acknowledge her distress, time, and trouble.
3. The Council should aim to be open and transparent with its customers, this should involve sharing information it relies on to decide what action to take, unless it contains the personal data of others. The Council will remind officers to share relevant information, and if unsure on data protection issues to seek advice from the Information Sharing Team.
4. The Council will remind its officers of the importance of keeping detailed, accurate and contemporaneous case notes, and clearly showing how it has reached a decision.
27. The Council should complete recommended actions a & b within one month of the Ombudsman’s decision, and recommendations c & d within three months of the decision. The Council should evidence its compliance to the Ombudsman.

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Final decision

28. I have completed my investigation on the basis the agreed actions are sufficient to acknowledge the impact on Ms B and to prevent future failings.

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Parts of the complaint that I did not investigate

29. I cannot investigate the outcome of Ms B’s insurance claim.

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Investigator's decision on behalf of the Ombudsman