OMBUDSMAN WATCHERS RESOURCE CENTRE

Local Government Ombudsman's decision letter (24th March 2009)

To Mr P J Kerr

Our Ref: 07/C/09647/AS/CRB

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Dear Mr Kerr

Thank you for your letter of the 27 February following your telephone conversation with Ms Hilton and Mr Corney's letter to you of the 6 February.

You express various concerns about the decisions made by Mrs Hooper and Mr Corney on your complaint. I am writing to respond to those concerns and give you my decision on your complaint. My decision is final. I have summarised the main stages in our handling of your complaint - please note that I have not detailed every item of correspondence that has been exchanged.

Your complaint

1. You complain about East Riding of Yorkshire Council's (ERYC) response to your request that it should clear the drainage ditches on Middledyke
Lane and remove fly-tipped rubbish because the condition of the ditches could lead to flooding.

2. The Cottingham Internal Drainage Board (IDB) had maintained the ditches from 1956 until 1975 when its responsibilities transferred to  Beverley District Council which continued to clear and maintain the ditches. A minute of Beverley District Council from January 1977 records that the Board had maintained certain drains at public expense, the Council would accept responsibility only for drains and watercourses shown on a plan and a length of drain from Middledyke Lane to the Hull City boundary. It appears that the EYRC may have maintained the ditches from 1996 - 2000 but has not done so since.

How your complaint was handled by this office

3. Your complaint of 4 October 2007 was allocated to Mrs Hooper and she made enquiries of the Council. On 18 December she wrote to you enclosing a copy of the Council's response, setting out her provisional views and inviting your comments before she reached a final decision. She referred to statements from EYRC that responsibility for the ditches was returned to the riparian owners when the IDB was wound-up and that in 1996 it had decided not to spend money on works that were not the Council's responsibility.

4. In your comments you challenged the Council's statement and referred to the Beverly Council minute that you had previously supplied and said that you had asked EYRC for copies of minutes of its decisions to return the ditches to the riparian owners and to stop cleaning the ditches.

5. EYRC informed Mrs Hooper that its response had been challenged by an elected Councillor and was withdrawn. EYRC directed you to the Treasure House, Beverley where copies of minutes were available for public inspection. You subsequently wrote to Mrs Hooper on 14 February to say that you had searched the archive and there was no record of the decisions that ERYC claimed had been made.

6. A new response from the Council was received on 18 April 2008 in the form of a letter to Councillor Knight, who was assisting you, from the Director of Corporate Resources. The letter said that ERYC had maintained the ditches from 1996 to April 2000 when it produced a Public Statement on Flood and Coastal Defence which set out a proposed land drainage maintenance programme that did not include the ditch at Middledyke Lane which had not been maintained since. It went on to say that ERYC was not automatically obliged to maintain ditches and that the response made to my office was correct but the reason given was wrong. Mrs Hooper invited you to comment on that point before she reached a decision on your complaint.

7. You responded to Mrs Hooper on 1 May 2008 commenting that she had been prepared to 'rule in favour of the EYRC on the basis of their original statement without proof that their statement was correct'; that one of the residents had paid to have the ditches cleaned because his son's home had been flooded in June 2006; and that the Public Statement on Flood and Coastal Defence was a generalised statement that would not be expected to include named ditches.

8. On 14 May you wrote again to Mrs Hooper with a brief reprise of the history of the ditches and EYRC's statements that you had shown to be unfounded. You pointed out that the Council did not have an Executive until May 2000 and so it could not have approved a Public Statement in April 2000 and that it had not been possible for you to trace a copy of any such Statement.

9. ERYC provided you with a copy of a Draft Policy Statement on Flood and Coastal Defence that it said was presented to the Executive in April 2001. That document included an assessment of flood risks from the ordinary watercourses in its area and listed five 'critical ordinary watercourses' that had been identified in conjunction with the Environment Agency. It states: The Council will ensure that regular maintenance is carried out on the flood defences and channels which we own, or for which we accept responsibility, so that they operate at optimum efficiency. Where the responsibility for maintenance rests with a landowner, we will aim to secure co-operation in ensuring appropriate maintenance takes place, drawing on enforcement powers if necessary. Five watercourses were identified for priority in the maintenance programme and an appendix set out the '...full land drainage maintenance programme'. The ditch and Middledyke Lane is not one of the five priorities and is not listed in the Appendix but 'Inspection of former Cottingham IDB area in spring and autumn.' is the second item.

10. You told Mrs Hooper on 09 June 2008 that you interpreted the Draft Policy Statement to prove that ERYC were responsible for the Land Drainage Maintenance Programme and that included the ditches on Middledyke Lane. Mrs Hooper wrote to you on 22 July apologising that she had not been able to write before and telling you that she wanted to check an issue with the Council before reaching a view on your complaint. On 23 September she sent you a copy of the Council's reply and her decision to discontinue her enquiries because the flooding to your area in June 2007 was an exceptional event and could not be attributed to the condition of the ditches.

11. The next item of correspondence on the file is a letter from you to Mrs Hooper dated 27 December in which you refer to a letter you sent to her on 25 October. That letter is not on our file but must have been received because you also refer to an e-mail to you from Mrs Hooper on 7 November telling you that an Assistant Ombudsman would review your complaint. It is extremely rare for correspondence to be misplaced and I am sorry that this seems to have happened to your letter of 25 October.

12. As a result of your December letter, the file was passed to Mr Corney to review on my behalf. The key point that you made was that you did not want the issue of ERYC taking over the duties of the Cottingham IDB to be lost in the debate about poorly maintained dykes.

13. Mr Corney wrote to you on 06 February 2009. He said that:


14. He therefore confirmed Mrs Hooper's decision to discontinue enquiries into your complaint.

An Apology

15. On reviewing the way that we have dealt with your complaint I feel that we have not explained matters as clearly as we should and the reasons for
deciding to discontinue an investigation have not been cogently set out. This will have caused you both irritation and uncertainty for which I apologise most sincerely.

The law governing the Local Government Ombudsman

16. I think it will help if I set out some of the provisions of the 1974 Local Government Act that are relevant to your complaint:


17. We are publicly funded to provide a service without charge to citizens who have suffered an injustice as a result of a local (or some other) authority acting with maladministration or failing in its provision of service. I must use the resources available to me as effectively as possible. This means that I or my staff will not start or continue an investigation once we are satisfied that: it is highly unlikely that we would find maladministration; and/or that the authority's actions have not caused an injustice or that the type and extent of injustice does not warrant the public expense of our continued involvement.

My decision on your complaint

18.    The two key questions for me to consider are: 'Is there evidence that ERYC has acted with maladministration?' and 'Has ERYC's actions caused you an injustice that warrants the continued involvement of this office.

19.    In deciding whether a public authority has acted with maladministration in reaching a decision or in taking (or failing to take) an action, we look at whether it has:


20. You contend that ERYC is under a duty (i.e. required by law) to maintain the ditches at Middledyke Lane and rely on the facts that: (i) it is the successor body to the successor body to the Cottingham IDB which did maintain the ditches; (ii) there is a minute recording that Beverley Borough Council took responsibility for the ditch when it succeeded the IDB. These facts are not in dispute but I think that your conclusion from them is wrong.

21. The IDB undoubtedly had the power to maintain the ditches and to do so at public expense. If it had continued to exist it would have had the power to maintain the ditches and meet the costs from income from levies on agricultural holdings and the local authority. However, the IDB ceased to exist in 1975 when Beverly Borough Council took over its role.

22. Once the 1991 Land Drainage Act came into force it governed the powers of the local authority (until 1996 Beverly Borough Council and since then ERYC). Section 14 (1) and (2) give a local authority '... acting ...so far as may be necessary for the purpose of preventing flooding or mitigating any damage caused by flooding in their area..' power to maintain, improve or construct works on watercourses that are not main rivers. When a local authority has a power but not a duty it is for the authority to decide whether, in what circumstances, and to what extent it will use that power.

23. You appear to believe that the ERYC is bound by the decision of the Beverly Borough Council and/or by agreements that the Cottingham IDB entered into with landowners. As a matter of law it is open to any council to change any decision that it or a predecessor council has made. I deal below with the decision made by ERYC. If there were specific agreements between the IDB and landowners I think it is highly unlikely that the ERYC either accepted or had given any obligation to act in accordance with those agreements. You may argue that I should investigate further to try to establish whether there were any such agreements that have passed to the ERYC. I am not prepared to undertake any further investigation into that point because any such agreements could only create rights and obligations between the parties and only be enforceable by the parties. You were obviously not a party to an agreement with IDB and can have no 'rights' in relation to any that existed in the past.

24. I am satisfied that ERYC does not have a duty to maintain the ditches and so has not acted in breach of the law or regulations. There is no statutory guidance requiring it to maintain the ditch and nor has it acted contrary to its own policies in not doing so. In fact, ERYC has taken a formal decision about how it will exercise its powers under the Land Drainage Act. The effect of that decision is that the Middledyke Lane ditch is inspected regularly but not maintained.

25. I have not undertaken a forensic examination of the process leading to EYRC's Draft Policy Statement on Flood and Coastal Defence. However, I consider that the Draft Policy Statement was an adequate basis for the decision taken in 2001 and that decision was 'reasonable' in the meaning of that term in public law. Case law has established that an unreasonable decision is one "beyond the range of responses open to a reasonable decision maker" or "a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at if. ERYC's decision to adopt the policy clearly does not come within these descriptions. I have no grounds for further investigation.

26. As explained above, in order to pursue a complaint I must be satisfied that the person affected by a council's actions has suffered an injustice as a result. The fact is that your home has not been flooded and the property that was affected by flooding was at the time when large parts of the country experienced extraordinary high rainfall and there was unprecedented flooding in many parts of the country. Whilst I understand the anxiety that you may feel and your desire to avoid the devastation that flooding can bring I do not consider that this amounts to an injustice that justifies continued investigation of your complaint.

27. You have expressed concern about the way that ERYC has dealt with your complaint such as the error in its first response to this office, tardiness in responding to you and in providing information. I do not endorse or condone the actions of any council that fails to properly consider complaints or takes an unhelpful or obstructive attitude. However, taking into account the history of the issue, I do not consider that the Council's actions have caused you an injustice that justifies continued investigation of your complaint.

28. For completeness I should also explain that I would not investigate complaints about a council's failure to respond to requests for information. This is because Section 26(6)(b) of the 1974 Local Government Act says that the Ombudsman shall not investigate "...any action in respect of which the person affected has or had a right of appeal, reference or review to or before a tribunal...'The Information Commissioner is a statutory tribunal established to deal with complaints that an organisation has not complied with the Freedom of Information or Data Protection Acts.

29. To summarise: the investigation into your complaints about ERYC's decision not to maintain the ditch at Middledyke Lane is discontinued because:


Conclusion

30. I am sorry that you have not achieved all that you hoped for when you complained to this office and that you were not given fuller explanations of the reasons for the decisions reached by Mrs Hooper and Mr Corney. I hope that my decision and reasons as set out in this letter now makes matters clear to you. My decision is final and the file on your complaint is now closed. I regret that pressure of work on current and new complaints means that we cannot continue to correspond with you on the issues.

Yours Sincerely

Anne Seex

Local Government Ombudsman

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