Summary: Mr W and Ms P complain that building works funded by the Council through a number of disabled facilities grants have not been completed in a good and workmanlike manner. They also complain the building project has been delayed and the Council appointed contractor was not suitability qualified to carry out the works. As a result, Mr W and Ms P say their home is in a state of disrepair and they have incurred financial charges over their property as a result of agreeing to additional grants to remedy past errors. We consider there are a number of jurisdictional issues which prevent us from investigating this complaint. Fundamentally however, this a commercial legal dispute. It is not the role of the Ombudsman to judge whether the works have been carried out to a satisfactory standard. Both Mr W and Ms P agreed on how disputes should be dealt with under the various agreements they entered and I consider we are not the body best placed to consider this complaint. We have therefore discontinued our investigation.

The complaint

1. The complainants, who I refer to as Mr W and Ms P, are making a complaint in relation the quality of home construction works the Council agreed to fund through a disabled facilities grant (DFG). Following Ms P suffering a life changing injury in 2016 which required home adaptations, she made an application to the Council for a DFG to help fund these. The Council awarded a DFG in 2017 and have since topped this up through other DFGs. The construction project comprises the construction of a single storey extension to form an extra ground floor bedroom and bathroom adaption for showing facilities. Further, it included a new front door be fitted to aid Ms P access to the property. The construction works commenced in February 2018. Specifically, Mr W and Ms P alleged the following:
1. To date, the works have taken over four years and Ms P has been unable to adequately use her property during this time. At present, neither Mr W nor Ms P has been provided a building control certificate in respect of any of the works undertaken.
2. The construction and building works have been carried out without reasonable care and skill and are of unsatisfactory quality.
3. The contractors selected by the Council to undertake the works were not suitable and they were not offered a choice.
4. The Council has failed to appropriately supervise the works and ensure these were to a satisfactory standard. It has not performed its role as Contract Administrator under the terms of the agreements.
5. The Council has insisted both Mr W and Ms P sign new grants, which include charges of their property, to remedy failings which are through no fault of their own.
6. The Council has failed to respond to the above issues and its complaints policy and procedure has not been fit for purpose.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating;
• any fault has not caused injustice to the person who complained;
• any injustice is not significant enough to justify our involvement;
• we could not add to any previous investigation by the organisation;
• further investigation would not lead to a different outcome;
• we cannot achieve the outcome someone wants;
• there is another body better placed to consider this complaint and/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)

4. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as independent building contractors. (Local Government Act 1974, sections 25 and 34(1), as amended).
5. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended).
6. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended).
7. 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).
8. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended).
9. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

10. I read Mr W and Ms P’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, supporting documents and applicable legislation. I invited all parties to comment on a draft of my decision. All comments received have been fully considered before a final decision was made.

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My findings

Background and legislative framework

Disabled Facilities Grants

11. Disabled Facilities Grants (DFG) are for people with a qualifying disability who need adaptations in their home to help them remain in their home. They are mandatory and must be awarded if the applicant meets the qualifying conditions. DFGs are paid to help towards the cost of adaptations to the home of a disabled person. Examples of the work a DFG can fund include installing ramps and stair lifts, adapting the kitchen or bathroom and/or making the property safe for the applicant or someone in the household. This can include provision of an extra bedroom if needed for the safety of all family members.
12. The council will usually pay the grant to the builder. It cannot be paid to the applicant or to a family member. If the applicant does not think the work is being done properly they can ask the council to withhold payment from the builder. The council can then pay the applicant if it agrees the work is not satisfactory. But, if the council thinks the work is satisfactory it can continue to pay the builder even though the applicant may disagree. The work should usually be carried out by the builder who had supplied the estimate.
13. We occasionally receive complaints about the quality of the work. Whether we hold a council responsible for the quality of the workmanship needs careful consideration. Where the complainant has entered into a contract with the building contractor, any complaint about the quality of the work would be for the complainant to take up with the contractor. The contract would also need to be considered in terms of dispute resolution.

Chronology of events

14. I have kept the chronology of events in this case brief. This is because I have discontinued our investigation, the primary reason being that the LGSCO is not the appropriate body to investigate the issues raised.
15. In November 2016, the Council approved a DFG to provide needed home alterations to support Ms P’s needs.
16. In July 2017, the Council undertook a tender process to obtain quotes from building contractors who could carry out the home alterations. It selected a contractor which it considered best value for money and put this to Mr W and Ms P for their consideration.
17. In February 2018, Ms P entered into a Home Improvement Agreement (the Agreement) with the contractor. The Agreement provides that the Council is not responsible for any failure by a contractor to carry out the work or complete the works. Ms P agreed to the terms of the Agreement. It also includes provisions about what action Mr W and Ms P should take in the event of a dispute.
18. Later that month, the building contractor commenced work at Mr W and Ms P’s home. The Council carried out a number of site visits to supervise the works.
19. Since this date, Mr W and Ms P have alleged that the works have not been completed to a satisfactory standard. They say the Council has agreed to organise remedial works which have meant additional DFGs being awarded and charges being placed over their property.
20. To date, the building works remain incomplete. The Council has responded to Mr W and Ms P under its formal complaint process. It said it is prepared to organise further inspections of the works and assist to resolve any issues with the works. However, the Council say Mr W and Ms P have withheld consent for the Council to organise further inspections and works at the property.
21. The Council deny that it is responsible for any poor workmanship and have referred Mr W and Ms P to the Agreement as to dispute resolution.

My assessment

Time limits

22. By law, I cannot investigate any complaint which has not been made to the LGSCO within 12 months of the complainant becoming aware of the problem, unless there are good reasons to exercise discretion in this respect. The concerns raised by Mr W and Ms P date back as early as May 2017. Mr W and Ms P raised a formal complaint to the Council in September 2020 and the Council issued a final response under its formal complaint policy and procedure in August 2021. Mr W and Ms P brought their complaint to the Ombudsman in January 2022.
23. In fairness to both Mr W and Ms P, each have spent considerable time trying to resolve the issues with the Council through its complaints policy and procedure. I do not consider it would be appropriate to include this time as contributing to my assessment of the time limits. I have therefore excluded it. However, I do not believe there are good reasons to exercise discretion and investigate allegations of fault which predate September 2019. I have considered the following:
1. There would be difficulties in establishing the material facts with reasonable confidence and gathering sufficient evidence to reach a sound judgement.
2. We cannot apply current standards, guidance, or professional expectations to historical situations. It is therefore likely to be more difficult to reach a firm and fair conclusion on whether there was maladministration in this case.
3. It is likely to be more difficult to achieve a meaningful remedy in this case, given the length of time that has already passed, the difficulty in establishing causality over longer time periods, and changes in the situation of the parties.
24. For these reasons, I do not consider that there is a realistic prospect of reaching a sound, fair, and meaningful decision relating to the appointment of a contractor and how the Council discharged its duties under the Agreement prior to September 2019. I consider Paragraph 7 applies in these circumstances.

Quality of construction works

25. The central issue of the complaint relates to the quality of the works undertaken by the building contractors. Mr W and Ms P allege the works have not been carried out with reasonable care and skill and are, in effect, of unsatisfactory quality. They say the Council is responsible for the poor workmanship. There are two important issues with respect to this complaint which I will address here.
26. Firstly, the building works have been funded by way of a number of DFGs provided by the Council. This means the Council has not paid the building contractors to undertake the necessary alteration works. Instead, the Council has provided Mr W and Ms P a sum of money in order to enter a contractual relationship with the building contractors themselves to carry out the work.
27. This is fundamental because the Council is not contractually responsible for the quality of the works. The agreements reached are exclusively between Ms P and the contractors. Further, the Agreement provides that the Council is not responsible for any failure by a contractor to carry out the work or complete the works. Ms P agreed to the terms of the Agreement. Further, she agreed to take her own legal advice and action if a dispute were to arise between her and any building contractor. I therefore do not accept, on the terms accepted by Ms P, that the contractors works are an administrative function of the Council. I do not have jurisdiction to investigate and the restriction I outline a Paragraphs 4 and 5 apply.
28. Second, the issues raised by Mr W and Ms P appears exclusively a commercial dispute. It is strictly not the role of the Ombudsman to adjudicate contentious legal issues relating to either breach of contract or negligence. The Ombudsman is neither a court, nor a dispute resolution arbitrator in the context of building and construction, or otherwise. Only a court can decide whether the Council has acted in breach of contract or that its actions have fallen below the appropriate standard of care owed in law, causing loss to Mr W and Ms P. We have no powers to award or enforce a payment of damages in these circumstances, or otherwise.
29. Therefore, while I recognise Mr W and Ms P may dispute the Council has no responsibility for the quality of the works, this is not an issue we would investigate in any event. I cannot by law investigate in circumstances where the complainants could reasonably take their case court. Because the issues raised by Mr W and Ms P require the structure of civil litigation for their determination (including disclosure and expert witness evidence), we cannot adjudicate these. I therefore consider it would be reasonable for Ms W and Ms P take their case to court and that I have no jurisdiction to investigate in accordance with Paragraph 8.
30. Equally, if Mr W and Ms P wish to dispute any terms and conditions under the Agreement as an unfair contract clause, they should pursue the matter through the courts, or an arbitrator. Importantly, the Agreement includes an expressed dispute resolution clause in the event of a dispute which carries the right of either party, giving notice to the other, to refer the matter to an arbitrator. As said, the Ombudsman is not an arbitrator. The parties have agreed how a dispute should be dealt with and so I consider it reasonable they act in accordance with the terms of the Agreement. In all the circumstances, the Ombudsman is not the appropriate body to resolve whether the quality of the works are to standard.

Contractor administrator

31. The role of the Council is to act as Contract Administrator and it has specific duties under the terms of the Agreement. In particular, the Council is responsible for appointing building contractors to carry out the alternation works. Further, it should supervise the works and ensure these have been carried out in a good and workmanlike manner. The Council therefore does have an administrative function under the terms of the Agreement. These generally fall under the headings of (i) appointment and (ii) supervision and quality assurance. I will now address these issues in turn. However, where a matter under any of these areas involves a dispute as to the quality of the works, then I will not investigate for the reasons already outlined.

(i) Appointment

32. The Council is responsible for identifying a contractor to carry out the works. It then puts the identified contractor to the service user for the purpose of each entering into a contract for the performance of services. It is alleged that the initial contractor was unsuitable to carry out the alterations. In particular, Mr W and Ms P allege that the contractor had no experience of carrying out property alterations for the purposes of wheelchair accessibility. Further, they say the Council appointed the contractor exclusively because it was the cheapest. It is further alleged that Mr W and Ms P had no say over who was appointed to carry out the home alterations works.
33. The Council’s appointment process requires that it carry out a tender and obtain at least three quotations from different contractors for the works. The Council commenced the tender process in early July 2017. The Council selected the contractor which it believed represented best value for money. The Council verified the contractor’s insurance details and obtained a method statement relating to carrying out the works, all of which were judged acceptable. In addition, the Council carried out a site visit in September 2017 to inspect previous work completed by the contractor. The Council judged the previous work acceptable.
34. On the face it, as the Council’s appointment process took place in 2017, this part of the complaint is late. If Mr W and Ms P were unhappy with the process by which a contractor was selected, they should have made a complaint then. I have however considered whether there are good reasons to exercise discretion and investigate. In my view, Mr W and Ms P’s dispute as to the contractor’s suitability arises strictly by reference to the quality of the works as they perceive them. Instead of making a complaint to the Council about the appointment, Ms P signed the Agreement with the contractor for it to undertake the works. This appears inconsistent with the view that Mr W and Ms P believed the contractor should not be undertaking the works. I do not therefore consider there are good reasons to go back four years and carry out a substantive assessment of a historical concern. The restriction I outline a Paragraph 4 applies.
35. In any event, given my findings at Paragraph 33, it is unlikely that I would find fault in the process to appoint a contractor. The normal process has been applied and the Council took steps to satisfy itself of the standards of the contractor’s work. I have no legal authority to question the merits of the Council’s decision absent a finding of fault. Moreover, I recognise that Mr W and Ms P may only have had concerns about the contractor’s suitability as a result of their perception regarding the quality and standards of the work. However, I have commented already that I will not investigate any matter concerned with a dispute which is legal in nature and where a more appropriate body exists to provide an outcome.

(ii) Supervision and quality assurance

36. The role of the Council, as Contract Administrator, is to inspect the contractor’s works and reject that which fails to meet the requirements contained within the Agreement, or specified building plans. The works commenced at Mr W and Ms P’s property in February 2018. I have reviewed numerous records of site visits undertaken by the Council during the course of the building works. I do not accept this complaint concerns a lack of site visits by the Council to manage the project. In any event, the majority of the key events requiring the Council’s supervision predate the time period I consider within my jurisdiction. Those visits which occurred since September 2019 are inextricably linked to matters which occurred earlier and would require me to investigate those for which I have no jurisdiction. I will not go back four years and investigate supervision concerns for the reasons I have outlined at Paragraphs 23 to 24.
37. The obligation to inspect the quality of contractor’s works is an administrative function of the Council. However, from my reading of the complaint there is a fundamental dispute between the parties as to the quality of the works carried out. I take the view that this complaint is a commercial legal dispute and to investigate the obligation of the Council would require a detailed consideration of whether I judge the works to be a of a good and workmanlike standard. It is not my role to make that assessment, nor would it be appropriate for me to go against what has been expressly agreed between the parties as to liability and dispute resolution. The parties have agreed that in the event of a dispute, either party, giving notice to the other, may seek arbitration. It would appear to me therefore, that absent court action, another body is best placed to resolve these disputes.
38. I do acknowledge however that there is agreement between the parties that there are outstanding works which require completion. In particular, the Council has agreed to fund the kitchen floor works, make arrangements to complete the extension roof hangers and secure any exposed electrical cables. Further, the Council told me it is offering to inspect floor issues in other areas at the property, the alleged leak in the bedroom roof and potentially ongoing drainage issues when it is confirmed what these are. The Council is also offering the installation of an automated inward opening door to the main property entrance. I do not accept the Council’s offer is an admission of liability. Taking the wording of the Agreement, the Council appears to be going beyond its contractual role to provide resolution in the event of a dispute.
39. The Council says Mr W and Ms P are withholding consent for these works to be progressed. In response, Mr W and Ms P say they are withholding consent due to a concern that the Council will only complete the extension roof works and leave all other issues unresolved. They therefore want a firm assurance from the Council that it will resolve all the problems at their property. In my view, this is not what the Agreement says the Council must do. In any event, I do not consider I can provide an outcome than what the Council has already offered Mr W and Ms P. I cannot make a finding that the Council should undertake to remedy all the alleged problems at Mr W and Ms P’s property. This is not the administrative role of the Council as Contract Administrator.
40. I have also commented already that I cannot question whether the works are unsatisfactory and therefore need remedial works. The Council has told me it remains completely committed to ensuring that works are completed, though it requires Mr W and Ms P’s consent for contractors to return to the property. If, following any additional works, Mr W and Ms P remain dissatisfied, the Agreement expressly states how these disputes should be resolved. I cannot investigate issues which appear wholly a commercial legal dispute.

Delay in completing the works

41. In addition, Mr W and Ms P complain that the building project has been unreasonably delayed. In particular, they say the works, to date, have taken over four years and Ms P has been unable to adequately use her property during this time. In my view, the issue of alleged delay is inextricably linked to Mr W and Ms P’s allegation that the works have not been completed in a good and workmanlike manner. I cannot investigate the issue of delay without in turn investigating whether the works are to standard. I have already given detailed reasoning as to why I cannot investigate the quality of the works. I do not therefore propose to investigate any complaint relating to delay.

Disabled facilities grants

42. The Council has provided a number of DFGs to Mr W and Ms P for them to fund the building works. A number of the DFGs include a financial charge over their property. This means that if Mr W and Ms P were to sell their property within a certain time period, the Council would be entitled to recover a fixed sum from them. In summary, Mr W and Ms P complain they have had to incur charges on their property as a result of the poor workmanship. They allege that, but for the alleged fault of the contractors, they would not have incurred additional financial charges over the property. They therefore want the charges to be removed.
43. I fully acknowledge why this matter is a concern for Mr W and Ms P. However, as with all other aspects of the complaint, they are asking me to judge whether the building works have been to a good and workmanlike standard. I cannot assess whether the financial charges are with merit absent that consideration. In addition, no charge will have been placed on Mr W and Ms P’s property without their informed consent. I cannot attribute fault to the Council in circumstances where Mr W and Ms P have agreed to charges to being placed on their property. There is no evidence of duress. In my view, if Mr W and Ms P believed they should not incur charges because of poor workmanship, they should have acted in accordance with the terms of the Agreement by either taking legal advice and action, or referring the matter to arbitration. I do not therefore consider there is any fault for me to investigate.
44. Further, it must also be noted than any injustice to Mr W and Ms P is speculative. As I understand, Mr W and Ms P have not sold their property and are not in the process of doing so. Therefore, neither of them anticipate incurring a financial penalty. On that basis, even if I were to find fault by the Council (which I have not), neither Ms W and Ms P have suffered serious loss, harm or distress.

Complaints process

45. I do not consider I can investigate the substantive matters of Mr W and Ms P’s complaint. The complaint is a commercial legal dispute and requires careful consideration as to whether the works have been completed to a satisfactory standard. The Ombudsman is not the appropriate body to consider this complaint and this is supported by the terms the parties have agreed to be bound to in the Agreement. Because I cannot investigate the substantive complaint outcomes, I do not consider it is a good use of our resources to investigate alleged problems during the complaints process. I do not therefore propose to investigate this issue.

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final decision

46. I respect and acknowledge Mr W and Ms P’s cause for complaint. However, all aspects of Mr W and Ms P’s complaint rests on a consideration which is beyond the remit of the LGSCO. Further, the complaint would require a detailed investigation of issues which occurred between 2017 and 2018 and I have given reasons why I do not believe there are no good reasons to investigate historical problems. The Council has also agreed to inspect the property and ensure the works are completed to a standard it considers to be sufficient. I would not likely recommend any alternative remedy. For these reasons, I am discontinuing my investigation. The LGSCO is not the appropriate body to consider and resolve a commercial legal dispute. The Agreement specifies what action Mr W and Ms P should take in the event of a dispute and I see no reason to depart from the terms expressly agreed between the parties in this case.

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Investigator's decision on behalf of the Ombudsman