Summary: The complainant complained the Council failed to properly exercise its powers to undertake emergency work in response to reports of cladding falling from a building putting residents and the public at risk. The Council said it visited the site, decided the building did not pose an imminent danger and engaged with the owner who agreed to undertake work on the building. We found the Council properly considered its powers and exercised its professional judgement, without fault.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained the Council failed to properly exercise its statutory powers when responding to complaint about falling cladding from a building near Mr X’s home. In Mr X’s view the Council failed to meet its statutory duties.
2. Mr X says the Council’s failure to act placed residents, visitors, and the public at risk of harm from falling cladding. Mr X wants the Council to commission a full survey of the building and confirm the cladding is secure and poses no risk.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. In considering this complaint I have:
• Spoken to Mr X and read the information presented with his complaint;
• Put to the Council my enquiries and studied its response and the information presented in support of that response;
• Researched the relevant law, guidance, and policy;
• Shared with Mr X and the Council my draft decision and reflected on the comments received before reaching this my final decision.

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What I found

The law

6. The London Building Acts (Amendment) Act 1939 (LBA) gives the Council the power to “take down, remove or otherwise secure” a dangerous structure to remove a risk. The LBA does not give the Council power to carry out work to bring a building up to the current Building Regulation standard.
7. Under the LBA, the Council may serve notice on a building owner to “take down, remove or otherwise secure” any structure it believes poses an imminent danger. Failure to comply may lead the Council to seek a court order compelling the owner to carry out works. The order may set a timeframe for completing the works.
8. The LBA gives the Council powers to undertake work to a building that poses an imminent danger and charging the costs to the owner. The Council may decide not to exercise this power where a building does not pose an imminent danger, or the owner is willing to undertake the remedial work.
9. Section 61(2) of the LBA says when told of a dangerous building the Council “…shall require a survey…by the district surveyor or some other competent surveyor”. The LBA says the surveyor should certify the state of the building.

The Council’s dangerous structure procedure

10. The Council has a 24-hour, seven day a week dangerous structures service. It aims depending on the seriousness of the report to visit the site within two hours of that report. If in the officer’s opinion the structure is imminently dangerous the Council may carry out remedial works to secure the structure. The Council may charge the owner for that work.
11. The Council says it carries out site visits from the street using binoculars. It does not have specialist equipment for detailed investigations but may hire it if necessary.

What happened

12. The building at the heart of the complaint, I shall call Wye House. The owners of Wye House decided to add a further floor to the three-storey building. Wye House the Council says is of an age that means it is unlikely to comply with current Building Regulations. The Council says it cannot enforce current standards retrospectively on the original three storeys of Wye House. The extension will need to comply with the current Building Regulations.
13. With works under way, Mr X reported to the Council that parts of the cladding covering Wye House had fallen to the ground. Mr X says with the cladding falling from a significant height it posed a risk of causing significant injury to anyone passing by. Therefore, Mr X expected the Council to survey Wye House and carry out remedial works to make the cladding safe by exercising its powers under the LBA.
14. Mr X reported his concerns to the Council in January 2020. Mr X asked the Council not to sign off the works under building control until the owner had made the cladding safe. An Approved Inspector not the Council had responsibility for signing off Building Regulations compliance. Therefore, the Council did not have any power over building regulation approval for the new work.
15. In an email to Mr X in January 2020 the Council explained Mr X should take up his concerns with the Approved Inspector. The Council said it had in another case hired a raised working platform to remove a danger it had identified. However, in the Council’s view, Wye House did not show any signs of imminent danger. Therefore, the Council said it could not act or serve notice on the owner under the LBA.
16. The Council says the responsibility for keeping Wye House in good repair lies with the freeholders and leaseholders. The Council says it will intervene using its powers under the LBA if Wye House posed a visible and imminent danger and the owners cannot or are unwilling to act. The Council’s officer visited five times following reports of loose and fallen cladding. The Council’s officer said on one visit he noted some loose cladding, took a photograph, and contacted the owner. The Council’s officer did not consider the cladding ‘immediately dangerous.’
17. Following the Council’s inspection in October 2020 it contacted the owner. The owner confirmed they had asked their contractor to inspect the cladding and make any loose cladding safe. The owner told the Council the contractors had removed the ‘hanging piece of cladding’. Their contractor would take a closer look using a cherry picker. The owner confirmed to the Council their commitment to thoroughly inspecting the cladding.
18. In October 2020 Mr X says the private surveyor commissioned to examine the cladding invited the Council’s officer to join him in the cherry picker when he inspected the building. The Council’s officer declined the invitation and inspected the cladding from the ground. Mr X believes the cherry picker enabled inspectors to view the cladding closely. This he believes would help them gain a more accurate understanding of the risk of falling cladding than an inspection from the ground using binoculars. The Council says its officer spoke with the cladding consultant who inspected the cladding using the cherry picker and reviewed his report. The Council says the report did not highlight an immediate danger the Council could act upon under the LBA. The Council believed from that report the owner had taken suitable corrective action.
19. In his complaint to the Council Mr X challenged the basis of its view that without signs of a danger it did not need to undertake a full survey. Mr X pointed out the latest section of cladding to fall to the ground happened after the visit by the owner’s contractors. Mr X posed the question to the Council ‘How many bits of metal have to fall off a building before you take action?’
20. In its final response to Mr X’s complaint the Council said it had acted in line with its interpretation of its powers under the LBA and had followed its usual procedure. The Council said the building’s owner remained responsible for undertaking maintenance. The Council said it did not have a duty to “…carry out a full survey to identify possible building faults where no visible dangerous faults are present…”. The Council’s officer has many years’ experience but consulted members of the London District Surveyors Association about the case. The Council says the consensus among members of the Association confirmed its view it could only use its powers under the LBA “to deal with visible dangers, not carry out preventative investigation work.”
21. In response to my enquiries the Council says it responded to each report that pieces of cladding had fallen by visiting the site and taking up the incident with the owners of Wye House. On all visits the Council says officers did not identify any visibly loose cladding which would trigger its powers under the LBA.
22. The Council’s view is the responsibility for the repair and upkeep of the building lies with the owners and leaseholders. The Council says it would only use its LBA powers where there is a visible danger, and the building owners are unwilling or unable to act.
23. When asked if the Council had recommended to the building owners any measures to prevent risks to the public the Council said it had not. The Council explained the Health and Safety Executive enforce the Construction Design and Management Regulations on safety. The Regulations cover protection of the public from dangers arising from works undertaken on buildings.
24. The Council says it could not impose any time limits for work to be complete because the criteria for action under the LBA had not been met. However, the Council says it has exercised other powers such as planning controls to investigate other complaints about the management of Wye House. Those issues are not the subject of this investigation.
25. Mr X says that the pattern of continuous bits of metal falling from the building should have resulted in an earlier, more intrusive, physical inspection by the Council’s officers. Rather than, Mr X says, looking at the building through binoculars from the roadway. It is Mr X’s view that had the Council carried out such a survey the Council would have discovered the dangerous loose cladding before they fell from the building. While the landlord gave assurances of inspections that did not prevent further items of cladding falling from the building. Mr X says each piece of cladding posed a significant risk of injury or worse.

Analysis – was there fault leading to injustice?

26. My role is to examine how the Council considered whether to exercise its statutory powers and if it acted with fault to recommend action it should take to address the impact of that fault.
27. The Health and Safety Executive may investigate and enforce the Regulations imposed to prevent a risk to the public. That is not a role for the Council unless it decides the building is dangerous and the owner is unwilling or unable to undertake work needed to make the building safe.
28. If in the Council’s view a building poses an imminent or immediate danger it can remove that danger and charge the costs to the owner under the LBA. However, where the Council considers the danger is not imminent the Council may ask the owner to undertake work to make the building safe. The owner appeared willing to carry out the necessary works, so the Council decided it had no need to exercise its powers to undertake the works.
29. The trigger for exercising the Council’s power, is twofold. First is the building in the Council’s view dangerous. Second, does the building pose an imminent or immediate risk of harm. In deciding these two issues, the Council’s officers must exercise their professional judgement.
30. What should the Council do in response to reports of a dangerous building? It should undertake a visual inspection. Decide if the building poses an imminent danger. If it does the Council should identify what work the owner is willing and able to undertake. Where the owner cannot or is unwilling to undertake the work, the Council must consider if it should exercise its powers to undertake the work.
31. The law says the Council shall ‘require’ a survey. The LBA does not define a survey. Therefore, it is for the Council to decide how detailed that survey should be. The Council used its own surveyor and considered the report by the chartered surveyor who inspected the building from a cherry picker. I find the Council met the duty to survey Wye House. I also find the Council met the duty to use a competent surveyor.
32. The Council’s power does not remove from the owner responsibility and liability for any injury or harm caused by debris falling from the building.
33. Councils should address any danger to the public quickly. Here six pieces of cladding fell from this building posing a risk of significant harm or injury. Whether the building works undertaken meet the Building Regulations is not a relevant issue in deciding if the Council should exercise its powers under the LBA. What it must decide under LBA is whether the building is dangerous. The Council carried out a visual inspection from ground level declining to join the surveyor who conducted an inspection in a cherry picker. The Council received that surveyors’ report and decided it did not need to undertake remedial works. The survey undertaken in the cherry picker did not result in the owner preventing further cladding from falling.
34. I find the Council followed its policy and procedure and considered whether to exercise its legal powers without fault. Further, I find that accompanying the surveyor in the cherry picker or providing its own equipment for closer inspection is unlikely to have resulted in any different action or prevent further cladding to loosen and fall.
35. The owner undertook inspections through their contractors and undertook work it believed would secure the cladding. Clearly as bits continued to fall the work had not successfully remedied the issue. However, that does not render the Council at fault for exercising its professional judgement the building owner was willing to carry out the necessary works. It shows the work undertaken did not resolve the issue. The Council could consider using its powers once it knew that further cladding had fallen. However, it believed the owner had arranged work to make the cladding safe. Therefore, in its view the circumstances did not meet its criteria for exercising its power.

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Final decision

36. In completing my investigation, I find the Council acted without fault in considering if it could and should use its powers under the LBA.

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Investigator's decision on behalf of the Ombudsman