Summary: Mr X complains the Council failed to resolve drainage and disrepair issues on the road and pavement outside his house and this caused him distress. There was fault by the Council which caused avoidable distress, time, and trouble to Mr X. The Council agreed to apologise and pay a financial remedy. It will also share a copy of our final decision and issue reminders to relevant staff.

The complaint

1. Mr X complains the Council failed to resolve drainage and disrepair issues on the road and pavement outside his house, which had been present since 2017. Mr X began reporting issues in 2023, and the issue worsened in 2024. Because of this Mr X says sewage water pooled in front of his property, blocking his access, and causing a smell which meant he could not open his windows. This caused him stress. Mr X wants the Council to:
• fix the drains and pavement, and carry out regular maintenance to stop it happening again;
• review what went wrong in how it investigated the issues and improve its processes; and
• pay him compensation.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. We make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. 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)

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How I considered this complaint

8. I considered:
• information provided by Mr X and discussed the complaint with him;
• documentation and comments from the Council;
• relevant law and guidance, and the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
9. Mr X and the Council had opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Flooding on the highway

10. A council has a duty to maintain highways in its area, including highway drainage (Highways Act 1980, section 41). A council must make reasonable arrangements to get rid of water which has fallen directly onto a highway, including the road and pavement. However, it has no duty over water which has run onto the highway from surrounding land.
11. The Council has powers to:
• for the purpose of draining the highway or preventing surface water from flowing onto it, clean existing drains, or construct new drains, in the highway or adjoining land, as it considers necessary (Highways Act 1980 section 100); and
• serve a notice to a landowner, requiring them to construct or maintain channels, gutters, or pipes to prevent surface water from their land flowing onto the pavement of the highway (Highways Act 1980 section 163).

The Council’s policy for reports of highway issues

12. The Council says where someone reports a highway issue, it will triage the case to decide whether it is urgent. For non-urgent reports, it will aim to assess and decide whether to record the issue as a defect within 28 days.
13.  
14. If the Council decides there is a defect, it will then carry out a risk assessment to prioritise the defect according to the following categories.
• Priority 1 and 2 defects – potentially so dangerous to the public that they require urgent attention because they represent an immediate or imminent safety hazard, or there is a risk of short-term structural deterioration.
• Priority 3 and 4 defects – low risk of causing harm, impacts the long-term serviceability and sustainability of the Council’s highways.
15. The Council’s response times for the different priorities are as follows.
• Priority 1 – response and repair within two hours.
• Priority 2 – response and repair time ranging from two to five working days.
• Priority 3 – defect to be considered for repair as part of the Council’s planned ongoing maintenance programme.
• Priority 4 – defect does not need repair within a stated period.

What happened

16. Mr X moved into his home in 2021. He says there were already issues with pavement disrepair, causing rainwater to pool on the pavement at the end of his driveway. He says a neighbour who was also affected told him they had already reported the issues to the Council, as had the previous owner of his home.
17. In January 2023, Mr X complained to the Council that it had not resolved the issues. Council records show it had already recorded a pavement defect which it classified as ‘Priority 3’, based on a previous report by someone other than Mr X. The Council investigated and recorded Mr X’s neighbour had at some stage before Mr X moved in, carried out works to the pavement so vehicles could better access their driveway, without the Council’s consent. This had created a sunken area at the end of Mr X’s driveway, into which rainwater pooled. The Council’s view was it was the neighbour’s responsibility to fix this pavement defect.
18. In November 2023, Mr X raised the issues again. He said the Council had left him unclear about how to resolve the issues. He could not carry out works to the pavement himself to fix it because it was owned by the Council, but the Council would not act.
19. In May 2024:
• Mr X complained again. He said the Council had told him it would investigate the issues but then not taken any action.
• Within a couple of days of this complaint, a separate issue arose. Mr X says a wastewater maintenance hole on the pavement and a gully drain on the road began to overflow with sewage wastewater. The existing issues with the pavement made this worse for Mr X, because the new wastewater was pooling in the sunken area at the end of his drive. He reported it to the water company which investigated and told him he should instead report this to the Council. He reported it to the Council, and to a different council as an environmental health issue. The other council told the Council it had inspected and there was significant wastewater pooling on the pavement and road.
• Within another couple of days, the Council responded to Mr X’s complaint. This response did not address the recent issues with wastewater as it had not yet investigated this. The Council again said it was the neighbour’s responsibility to fix issues with the pavement and directed Mr X to the Ombudsman to escalate his complaint. Following this response, the Council considered internally whether it should take any enforcement action about the pavement defect and decided it would take no enforcement action. It told Mr X it was considering enforcement action but could not tell him the outcome because it could not disclose data about third parties.
• The Council then inspected the site and recorded there were new issues with pooling wastewater, made worse outside Mr X’s property by the existing pavement defect created by his neighbour. It decided it was likely the wastewater came from a blocked water company sewer in the area and reported this to the water company the following day. The water company said there was no issue with its pipework. The Council told Mr X it planned to investigate further to see if there were any blockages in Council drains, and if so, fix these, by the end of June 2024.
20. In June 2024, Mr X brought his complaint to the Ombudsman. Around the same time, the Council visited the site to inspect any blockages in its drains. In response to my enquiries, the Council said at this visit it:
• found no defects in the Council’s highway drainage;
• found the wastewater maintenance hole on the pavement, although not owned or managed by the Council, did discharge into the Council’s highway drainage system. The pipe leading from the maintenance hole to the Council system was blocked with roots from vegetation; and
• pumped water into the wastewater maintenance hole and the nearby road gully drain to clear any blockages and cleaned Mr X’s driveway. This resolved the issue with wastewater.
21. After Mr X came to the Ombudsman, the Council’s investigations into the original pavement defect continued. The Council visited the site in September 2024 to scope repair works needed to the pavement to prevent rainwater pooling. It told Mr X’s partner it was planning to install a pavement gully drain. The Council told us it had provisionally scheduled this work for October 2024.

What I have and have not investigated

22. Mr X says a data request he made to the Council showed the issue of rainwater pooling on the pavement had been present since 2017, well before he moved into the property in 2021. I did not consider events before Mr X moved into the property in 2021, as this did not cause Mr X a personal injustice.
23. Mr X says the rainwater pooling issues were present continuously after he moved in, in 2021. The law says we cannot investigate events which happened more than 12 months before somebody complained to us, unless we decide there are good reasons it took them longer to complain. Mr X first came to the Ombudsman in June 2024, so we would usually only look at what happened after June 2023.
24. Mr X first complained to the Council in January 2023. He told me he did not raise concerns before 2023 because the Council’s website says not to raise duplicate issues, and he knew a neighbour who was also affected had already raised the issue. I have investigated events after January 2023. I consider the Council delayed Mr X in coming to the Ombudsman by around six months because it failed to investigate his November 2023 concerns until he complained again in May 2024. However, I am satisfied Mr X could have complained to us sooner about events before January 2023.
25. The issue of rainwater pooling on the pavement continued after Mr X came to us on 9 June 2024. However, I have not investigated events after this. I can only consider how the Council considered and responded to issues up to 9 June 2024. The law says councils must have reasonable opportunity to respond to a complaint before we look at it. If Mr X wishes to complain about the process followed by the Council after he came to us, he would need to make a new complaint to the Council about this first. If he remains dissatisfied following the Council’s response, he could then make a new complaint to us to ask us to consider it.

My findings

The Ombudsman’s role

26. We are not an appeal body and cannot make decisions about what action is correct to maintain a highway or its drainage systems. Our role is to review the process by which councils make decisions and look for evidence of fault causing injustice. We cannot question a council’s professional judgment where this was not affected by fault. Also, enforcement action is discretionary; it is up to councils to decide whether they need to act.

Pavement defect and pooling rainwater

27. From January 2023 to June 2024, the Council repeatedly told Mr X it had decided the pavement defect was the responsibility of his neighbour. It did not consider whether it should take enforcement action about this until June 2024. This was fault. However, once it properly considered this it decided it should not take enforcement action, so the lack of any earlier consideration did not change anything.
28. The Council decided in June 2024 it would not take enforcement action but there is no evidence it communicated this to Mr X. It only told him it could not tell him the outcome because it could not disclose data about third parties. I accept the Council has data protection responsibilities and needs to carefully consider how it shares information. However, it had already disclosed to Mr X it was considering enforcement action against a specified neighbour. I consider the Council was at fault because it should have made clear if it had decided it would take no further action so Mr X could make a properly informed decision about next steps.
29. After its decision to take no enforcement action, if the matter was closed, we would expect the Council to explain this to Mr X and make clear if its position was this was a matter for private legal action. However, in this case the Council had decided it would take further action. It decided it should address the pavement defect itself without enforcement action, so it should remain an open case to be scheduled for repair. It then scheduled repairs for October 2024. The Council should have made clear to Mr X it was still planning to take action. It did not make this clear and neither did it properly respond to his complaints. It did not explain its decisions or what Mr X’s next steps should be. This was fault.
30. Mr X was caused avoidable distress and confusion as well as time and trouble in having to raise the same complaint multiple times because the Council did not properly respond.
31. The Council’s policy says Priority 3 defects will be considered for repair as part of its ongoing maintenance programme. However, its records showed no consideration of how the defect would be scheduled within this programme, either when first raised by someone else, or when reported again by Mr X. It did not record any proposed date for repairs to be completed or keep this under review as the issue progressed. It did not provide Mr X with an indicative timescale for when this may be completed based on its maintenance programme. This was fault.
32. There remains uncertainty for Mr X about whether the Council would have completed pavement repairs sooner if it had properly considered how it should schedule this within its maintenance programme. This remaining uncertainty causes further distress. The Council should remedy the injustice caused.

Blocked highway drains and wastewater

33. We would usually expect an issue with wastewater to be the responsibility of the water company. We cannot investigate the actions of a water company. We can only investigate the actions of the Council, and whether it properly considered its duties and powers to maintain the pavement and road. We can only recommend a remedy for any injustice caused directly by fault by the Council.
34. The Council decided there were no defects in its drainage system and the blockage and resulting wastewater came from a pipe in the wastewater maintenance hole, not owned by the Council. It is not for the Ombudsman to comment on the probable cause of the issue or to question the Council’s professional judgment about this. However, the Council has powers to clear drains it does not own on land adjoining the highway, if it considers it needs to do so to meet its duty to keep the highway clear. It decided it should use these powers, and I consider it could have decided this sooner if it had correctly followed its policies.
35. After the wastewater issues arose, there is no record the Council properly considered this as a new and separate highway defect. It did not triage the case to decide if it was urgent, carry out a risk assessment, or decide about priority. This was fault. On the balance of probabilities, and based on the Council’s maintenance and inspections strategy, I decided if it had considered this properly it would have decided this was urgent and classified it Priority 1 or 2. For the type of road Mr X lives on, this would have meant repairs were complete within at least two working days. It took the Council one month after Mr X reported the wastewater issue to resolve the issue and clear the wastewater pooled on the highway. This delay caused Mr X avoidable distress.
36. The impact of the wastewater issues on Mr X were made worse because of the existing pavement defect. I have already found the Council at fault because it took too long to properly consider and decide whether it should use its powers to resolve the pavement defect, and when it should schedule this. There remains uncertainty for Mr X about whether the Council could have completed the pavement repairs before the wastewater issues arose if it had considered this properly. This remaining uncertainty causes further distress. The Council should remedy the injustice caused.

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Agreed action

37. Within one month of our final decision the Council will:
1. apologise to Mr X for the faults identified and the impact of those faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology;
2. pay Mr X £200 to recognise the distress, time, and trouble caused; and
3. share a copy of our final decision with relevant staff. It should remind them about the importance of:
1. properly considering the Council’s range of powers to resolve highway issues, and fully recording these considerations;
2. fully recording risk assessment and prioritisation for highway defects in line with the Council’s policies; and
3. properly responding to people who report highway issues and complaints to ensure the Council’s position is clear.
38. The Council will provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation. There was fault by the Council which caused avoidable distress, time, and trouble to Mr X. The Council agreed to our recommendations to remedy this injustice. It will also share a copy of our final decision and issue reminders to relevant staff.

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Investigator's decision on behalf of the Ombudsman