Summary: The complainant, Mrs X complained the Council failed to properly consider repairs to or restructuring the highway drainage network causing frequent flooding to her garden and putting Mrs X’s home at risk of flooding. The Council told us it has the network in its programme of repair and replacement and gave it the priority attributable under its priority scheme. We found the Council acted without fault in deciding the priority for that programme.

The complaint

1. The complainant whom I shall refer to as Mrs X, complains the Council failed to properly and in a timely way review and improve the effectiveness of its highway maintenance and drainage programme.
2. Mrs X says this led to gullies and highway drains serving the highway in front of her property often blocking causing avoidable flooding to her property.
3. Mrs X wants the Council to improve the drainage system and cleaning programme to reduce the flooding risk at her home. Mrs X also says the Council needs to stop allowing development that connects to the existing system which cannot cope with increased flows.

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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 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. In considering this complaint I have:
• Spoken with Mrs X and read the information presented with her complaint;
• Put enquiries to the Council and studied its response;
• Researched all relevant law, guidance, and policy;
• Shared with Mrs X and the Council my draft decision and reflected on the comments received before making a final decision.

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What I found

7. The Highways Act 1980 places a duty on highway authorities to maintain public highways. This duty extends to drains running under the highway. We would expect councils to routinely monitor the condition of its highway drainage and carry out repairs and replacement where they consider it necessary.
8. The law does not set out when or how often a council should inspect the highway or drains serving it, or the threshold for when repairs should take place.
9. The Council has a rolling programme of inspection, repair and replacement which gives priority to sections of highway drainage related to flooding incidents affecting major roads. The programme assigns lesser priority to minor roads. In assigning priority, the Council also considers the depth of the flood and whether it affected habitable property, such as homes.

What happened

10. Mrs X says that she contacted the Council in 2016, 2018 and 2019 because she says flooding from the highway often affected her garden during those years. Apart from the damage and expense caused, Mrs X fears poor drainage puts her home at significant risk of flooding. Mrs X says each time she asked the Council to improve the drainage it took no action. In June and July 2020 Mrs X says she called the Council’s emergency helpline and received sandbags to help prevent the flood water entering her home. However, Mrs X says it still covered her garden causing damage, expense, and inconvenience. The Council then cleared the gullies, but this did not prevent further flooding because they blocked again shortly after. In Mrs X’s view the gullies and drainage network cannot cope with the rainfall passing through it. Mrs X says the drainage network does not have enough capacity for the area it serves.
11. In response to Mrs X’s complaint the Council said it plans to improve the highway drainage network in the area. The Council said this would not take place for some time. Mrs X says the Council failed to update her about what it planned to do and when it planned to carry out the work. The Council did not uphold the complaint.
12. Mrs X says she has experienced increasingly significant flooding due to the incapacity of the gullies and drains serving the highway for over four years and that is too long.
13. The Council told me that in response to the flooding it commissioned its consultant to assess the highway drainage in the area surrounding Mrs X’s home. The Council gives priority to sites based on the road’s classification and the depth, and severity of the flooding. The Council gives greater priority to sites where the flooding affects habitable areas of a home, as opposed to flooding of garages, outbuildings, or gardens. The area is one of several identified for highway improvement projects the Council plans in the next three years.
14. When it assessed the drainage in the area the Council’s assessor found the drain network serves significant areas of hardstanding associated with the public highway. The age and condition of the interconnecting drainage systems in the Council’s view means they meet its criteria for an improvement programme. The Council has begun design work. The Council hopes to design and deliver a solution within its three-year rolling programme. However, this depends on the impact of any further severe weather events or flooding that creates higher priorities. Therefore, the timescale may increase if other more significant projects need priority. The Council hopes to carry out works depending on finances and priorities remaining the same. The Council says the scheme has the relevant priority. It cannot consider it as more urgent than the schemes given higher priority in the Council’s programme of improvements. The Council cannot give a guarantee when the work will begin.
15. The Council says the drainage in question serves only the local highway and not public highways on other development. In commenting on my draft decision, Mrs X disputes this and has video evidence of run off from local land. The Council says it cleanses the gullies on the highway every year. In addition, when it received reports of flooding it sent out teams to jet the gullies to relieve the problem. With only one officer assigned to managing highway drainage and flooding the Council says depending on demand it is not possible to keep all parties updated in a timelier way.
16. The Council says it has assessed the drainage system. It says it gave the scheme priority according to the severity of flooding and classification of the highway. Mrs X’s home has not flooded, and the highway is a minor rather than major road. Under the Council’s policy therefore it commands a lesser priority. Even so Mrs X argues she has experienced flooding in her garden most years and she has waited long enough. Mrs X does not want an open-ended commitment to improvement she wants to see improvements soon.
17. In 2018 the Council says it gave Mrs X details of its insurers so she could present a claim for damages, but it does not have any record of a claim.

Analysis- has there been fault leading to injustice?

18. My role is to consider how the Council responded to complaints of flooding and to decide if it acted with fault. Where I find the Council acted with fault, I must decide what the impact of that fault has been and what the Council should do to put it right.
19. Council’s have a duty to provide drainage to serve the public highway and to keep it in good condition and ensure it meets the needs of the highway. The Council has a rolling programme by which it gives priority to drainage systems known to need improvement and designs and plans those improvements. The Council must adopt a priority scheme to ensure the most urgent replacement or redesign takes place according to the likely damage to habitable areas of homes. However, it must also ensure within that programme work on lesser priority schemes continues to prevent more serious flooding.
20. Mrs X has experienced several flooding events on her property. Fortunately, it has not caused flooding in her home. However, Mrs X believes that is only a matter of time as the events increase in severity. Without work to improve the capacity of the present gullies Mrs X fears her home may be at greater risk of flooding. The frequent flooding of the garden area causes distress and expense for her family.
21. The Council has responded by assessing the drainage network serving the highway outside Mrs X’s home. It has applied the correct priority assigned by its policy. This is five years from when Mrs X first reported flooding events. The Council has acted in line with its programme of drainage improvement, and the network is now receiving attention. Therefore, I find the Council has acted without fault in allocating priority for this design work.
22. The Council accepts due to staff numbers and demand on the service it does not always provide information and feedback in the timely manner residents may expect. Residents should be kept informed of plans to improve drainage because this may lessen the anxiety experienced.
23. Where the Council causes damage to Mrs X’s property, she has a right to make a claim for that damage. The Council has provided details of how to make a claim through its insurers. I cannot say whether in law such a claim would be successful.
24. I recognise Mrs X is not looking to make a claim. Mrs X wants action to improve the highway drainage network serving the highway outside her home. The Council has begun that procedure but delivering a solution may take much longer than Mrs X feels is acceptable. The Council will need to monitor progress with the scheme and show it continues to give it the proper priority. When reviewing progress, the Council should provide an update to Mrs X.
25. The Council has acted in line with its priority procedure. Therefore, I cannot challenge its decision to give correct priority to other schemes aimed at reducing more significant flood events or risks.

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Final decision

26. In completing my investigation, I find the Council acted without fault in allocating priority to improvements to the drainage scheme serving the highways near Mrs X’s home.

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Investigator's decision on behalf of the Ombudsman