Summary: Mr and Ms X complain about the Council’s decision not to prosecute a builder who they are in dispute with. We will not investigate the complaint because we are unlikely to find evidence of fault by the Council.

The complaint

1. The complainants, who I refer to as Mr and Ms X, say the Council made the wrong decision in deciding not to prosecute a builder who they are in dispute with. They say the Council has not considered all the information they have provided in coming to its decision and that they have been denied justice as a result.

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The Ombudsman’s role and powers

2. 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)
3. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. In considering the complaint I spoke to Mr X and reviewed the information the Council and the complainants provided. I gave Mr and Ms X the opportunity to comment on my draft decision.

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What I found

5. Mr and Ms X obtained planning permission to develop their property and employed a builder to carry out the work.
6. In 2020 Mr and Ms X’s MP contacted the Council about the problems they were having with the builder and the work he was doing. The Council told the MP that the dispute was a civil one between the builder and Mr and Ms X and it was not one the Council would become involved in. The MP then contacted the Council to ask if its Trading Standards Team would look at the case.
7. The Council wrote back to the MP to explain that in February 2019 the complainants had complained about the builder and Trading Standards had then investigated him for possible criminal offences under consumer protection laws. It said it had advised the complainants to get an expert report on the work carried out and to consider civil action against the builder. Following receipt of the expert report a Council officer carried out a formal interview with the builder with his solicitor present. The officer concluded that no offence could be proven. The complainants asked the Council to review its decision which it did, but it reached the same conclusion.
8. Towards the end of 2020 the MP contacted the Council again about the case and the Council repeated that no criminal evidence had been identified, that the dispute was a civil one and that it could not claim compensation for Mr and Ms X.
9. Dissatisfied with the Council’s response, the complainants complained to us and said the Council had failed to look at new evidence they had submitted to it in November which they believed supported their case that a criminal prosecution should take place.
10. As Mr and Ms X were unsure whether they had contacted the Council with their new evidence, I sought clarification from the Council. It confirmed it had no record of this new information and so, as it had not received it, it had not considered it. Mr X later confirmed that in fact the email he thought he had sent the officer with the new evidence in November had bounced back and so had not been sent.

Assessment

11. The Council considered the evidence it had at the time in coming to its decision not to prosecute the builder. We cannot review the merits of council decisions properly made no matter how strongly complainants may disagree with them.
12. Mr and Ms X say they have new evidence to support their case. They wrongly thought they had previously sent this to the Council. They had not done so but it is open to them to do so now.

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Final decision

13. We will not investigate this complaint. This is because we are unlikely to find evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman