Decision : Not upheld
Decision date : 09 May 2018
The Ombudsman's final decision:
Summary: Ms T complains about the way the Council’s trading standards team dealt with her complaint about a builder who carried out poor quality work at her property and owed her money. The Ombudsman has found no evidence of fault in the way trading standards handled the matter.
- The complainant, whom I will call Ms T, complains that the Council’s trading standards department:
- failed to properly investigate her complaint about a builder who carried out poor quality work at her property and took a large deposit from her in respect of future work which he did not carry out;
- delayed in pursuing the investigation and failed to keep her informed about progress;
- failed to take action to prevent the builder from operating and failed to take legal action against him; and
- failed to assist her in recovering money owed to her by the builder.
The Ombudsman’s role and powers
- 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)
- If we are 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)
How I considered this complaint
- I have considered all the information provided by Ms T, made enquiries of the Council and considered its comments and the documents it provided.
- I wrote to Ms T and the Council with my draft decision and considered their comments.
What I found
- Ms T contacted the Council’s trading standards department on 8 May 2015 about problems with a builder, Mr Y, who had carried out extensive work to her property including a new kitchen, new garage and drive. Since then she had experienced problems with damp, leaks in her kitchen and her patio flooding when it rained. She had obtained advice from an independent builder who said the problems had arisen because Mr Y had built the garage too high and so had raised the height of the drive above the damp proof course. In addition, Ms T had given Mr Y a deposit of £12,000 for a loft conversion but he had not started the work. Ms T had asked Mr Y for her deposit back because she was concerned he was not competent to do the work but he had refused.
- A trading standards officer, Officer A, spoke to Ms T on 11 May 2015. She explained the situation and agreed to send a copy of the surveyor’s report she had obtained.
- Having received the surveyor’s report on 1 June 2015 Officer A arranged to visit the property on 15 June 2015. He found damp in the kitchen and noted Mr Y had raised the level of the drive to access the new garage. The drive now sits above the damp proof course and is creating damp in the kitchen. Further damp problems had been caused by a leak in the bedroom. Officer A agreed to contact Mr Y to discuss rectifying the problems but explained he would be on annual leave from 22 June to 29 June.
- Officer A telephoned Mr Y on 17 June 2015 but there was no answer. He telephoned him again on 30 June after his return from annual leave and on 2 July 2015 but received no answer. He telephoned Ms T to provide an update the same day and spoke with her solicitors.
- Officer A wrote to Mr Y on 15 July 2015 explaining Ms T wanted her deposit returned and the issues with the property rectified and asked Mr Y to contact him. Officer A recorded in the action diary that, if Mr Y did not respond, he would pass the complaint to the criminal investigation department. Ms T sent an email to Officer A requesting an update.
- On 28 July 2015 Mr Y telephoned Officer A in response to his letter. Officer A explained the potential offences committed and that Mr Y was obliged to rectify the issues within a few weeks and refund the £12,000 by a payment plan. Officer A telephoned Ms T to update her. His notes state “happy for work to be done by T to rectify and will set up payment plan for refund”. He advised her to speak to her solicitor about having a payment plan drawn up. He also said he would speak to Mr Y about the cost of drawing up the plan.
- Officer A made a note that he would need to visit Ms T’s property again to establish exactly what work needed to be done to rectify the issues and take further photographs to discuss with Mr Y.
- Officer A met with Mr Y on 3 August 2015. He agreed to repay the £12,000 and meet Officer A on 7 August 2015 to make plans for the work to be rectified. He agreed that, once the work was completed, he would pay Ms T £1000 per month reducing to £500 per month between November and February then reverting to £1000 per month. Ms T was happy with this. Mr Y also agreed to pay £200 for the legal agreement prepared by Ms T’s solicitors.
- On 7 August 2015 Officer A met Mr Y at Ms T’s property. The works were agreed between Ms T and Mr Y. It was also agreed that a payment plan would be set up via Ms T’s solicitors.
- On 28 August 2015 Ms T’s solicitors contacted Officer A saying they had not heard from Mr Y. Officer A spoke to Mr Y who confirmed he would start work the following week.
- On 1 September 2015 Ms T sent an email to Officer A stating the remedial works had not started and her solicitors had received no contact from Mr Y about the payment plan.
- Mr Y started remedial works on 9 September 2015. But a few days later Ms T contacted Officer A stating he had not turned up.
- On 21 September 2015 Officer A received a message from Ms T’s partner, Mr R, asking for the name of the officer who would be taking over when he left the Council. The new officer, Officer B, telephoned Mr R on 23 September 2015. Mr R said the work had still not been rectified and the payment plan had not been set up. Officer B agreed to contact the solicitor and Mr Y to find out what was happening.
- Between 25 September and 8 October 2015 Officer B telephoned the solicitors three times and left a message on each occasion. She also contacted Mr Y who agreed to rectify the problems. A few days later Mr Y telephoned Officer B explaining he had received a letter from Ms T’s solicitor asking for the full £12,000 within 28 days plus interest. He explained he could not pay the full amount immediately.
- Officer B telephoned Mr R who explained they were fed up of waiting for trading standards or Mr Y to set up the plan so had asked the solicitor to send a letter requesting payment in full. Officer B explained it was up to Ms T to set out a plan with the solicitor and send it to Mr Y. She suggested changing the request to a payment plan as this was the most likely way to recover the money and Mr Y would pay the £200 free to set up the plan.
- On 12 October Officer B spoke to Mr Y who explained he was not happy to start remedial works because another contractor was working on the loft conversion and he was concerned about confrontation. He said he would carry out the work when the contractor was not at the property or when the loft conversion was finished or Ms T could get someone else to rectify the problems. Officer B advised Mr Y to speak to Ms T’s solicitor about this.
- On 14 October 2015 Ms T made a formal complaint to trading standards because Mr Y had not repaid any of the outstanding money and had not carried out the remedial works.
- In the meantime, Ms T told her solicitors she was no longer dealing with trading standards and instructed them to commence civil proceedings against Mr Y. They sent a Letter before Claim to Mr Y. Having received a response from his solicitors, they advised Ms T not to pursue legal action because Mr Y had made a reasonable offer and this would cause delays in payment. Ms T accepted Mr Y’s offer and her solicitors prepared a payment plan.
- In November 2015 Ms T instructed another contractor to carry out the remedial works as she was concerned about flooding during the winter.
- Officer C took over the matter on 1 December 2015 and reviewed the file. He telephoned Ms T to arrange an appointment to take a witness statement. As a payment plan had recently been drawn up, it was agreed trading standards would not contact Mr Y until some of the money had been paid. Officer C telephoned Ms T again on 16 December 2015. She confirmed the payment plan had still not been signed. Officer C agreed to contact her in the New Year to arrange an appointment for her to sign the witness statement.
- Officer C attempted to contact Ms T between 5 and 14 January 2016. He arranged an appointment for 18 January 2016 but had to cancel this. The meeting was rearranged for 25 January. This was rescheduled as well and Officer C visited Ms T on 28 January 2016. She signed the witness statement and they discussed the next steps.
- Officer C decided he would not pursue the matter while Mr Y was making payments if Ms T agreed. He met Ms T again on 8 February 2016 and explained payments may stop if he intervened at this point. His view was that it was best to wait until the balance of the monies had been paid before writing to Mr Y about legal action. Officer C’s notes record that Ms T had received some payments and was happy with this approach. Officer C made a note to keep the file open until the balance was paid and then advise Mr Y about legal action.
- Between March and May 2016 Ms T received further cheques and notified Officer C.
- In August 2016 Ms T notified Officer C she had received no payments in June or July. At this point there was a balance of £4000 outstanding. Officer C visited Mr Y the same day. Mr Y had broken his back so had been unable to work. He agreed to restart payments the following month. Officer C sent an email to Ms T explaining this. He also wrote to Mr Y explaining what action would be taken if he did not restart the payments.
- On 3 October 2016 Ms T notified Officer C she had received no further payments. Officer C visited Mr Y’s house the same day and spoke to his wife. He left a message asking Mr Y to telephone him.
- On 17 October 2016 Officer C wrote to Mr Y asking him to confirm his proposed action regarding repayment of the money owed and threatened formal action if he did not do so. Mr Y telephoned Officer C a few days later offering to pay £250 in November and December and recommence payments of £500 in January 2017. Officer C notified Ms T of this and she agreed.
- On 1 December 2016 Ms T sent an email to Officer C stating no payments had been made. She said she would leave it until the end of January before making a formal complaint about how trading standards had handled the matter.
- The following day Officer C hand delivered a letter to Mr Y asking him to pay the agreed amounts for November and December and provide a sensible repayment plan for 2017 within the next seven days. Officer C telephoned Mr Y several times between 9 December 2016 and 19 January 2017 but received no response.
- On 21 February 2017 Ms T made a formal complaint. The complaint was investigated at stage 1 of the Council’s complaints procedure.
- Officer C visited Mr Y’s property on 10 March 2017. There was no answer so he left a card asking Mr Y to contact him. He visited again on 3 April 2017 and spoke to Mr Y who confirmed he was only working two days a week and would pay Ms T when things picked up.
- Officer C went to Mr Y’s property again on 28 April 2017 but no one was home. He visited again on 17 May 2017 and spoke to Mr Y who was still only working two days a week. He offered to pay £250 a month from the end of June. Officer C discussed possible criminal offences with Mr Y.
- Between 6 June and 29 August 2017 Officer C visited Mr Y’s property on several occasions and left messages for Mr Y. He also telephoned Mr Y several times and left messages.
- On 1 September 2017 Ms T made a further complaint to the Council. On 11 September 2017 Officer C obtained legal advice about whether to take formal enforcement action, including a possible prosecution in respect of the outstanding balance owed which was £3250.
- The Council responded to Ms T’s stage 2 complaint on 3 October 2017 explaining why officers had decided not to take legal action against Mr Y.
- Officer C contacted Mr Y again in December 2017 and January 2018.
- Ms T complained to the Ombudsman in February 2018. She has confirmed Mr Y has now repaid the £12000 owed.
Failure to properly investigate Ms T’s complaint
- I am satisfied officers properly investigated the matter. They visited Ms T’s property and inspected the works, met with Mr Y and arranged that he would carry out remedial work and repay the £12,000 via a repayment plan drawn up by Ms T’s solicitors which he would pay for. They continued to pressurise Mr Y to make payments to Ms T. They also advised Ms T she could issue civil proceedings against Mr Y and offered to provide advice on this.
- Councils have discretion on trading standards matters as to whether, and to what extent, to investigate a particular complaint. Their decisions are taken in the general interests of the public rather than the interest of the individual complainant.
Delay in investigating the matter
- I agree the investigation was lengthy. But there were legitimate reasons for this. Officers were concerned to ensure Mr Y complied with the repayment plan and, once he started making regular payments, were reluctant to take any action to disrupt this. Ms T agreed with this approach. Mr Y then suffered an accident which meant he could not work for some time. Officers considered his argument that he was unable to make payments during this time was not unreasonable and decided there would be no point issuing court proceedings in these circumstances as they were unlikely to be successful. They therefore continued to pressurise Mr Y to make the agreed payments. I find no grounds to criticise the Council in this regard.
Failure to keep Ms T informed
- I am satisfied officers kept Ms T informed throughout. They contacted her regularly with updates and there were no lengthy periods during which no contact was made.
Failure to take action to prevent the builder from operating
- There are no grounds to criticise the Council in this regard. It does not have the power to prevent a business from trading except in certain limited circumstances that do not apply here.
Failure to take legal action
- Trading standards has discretion on whether to prosecute a trader. Officers will normally attempt to resolve a situation by negotiation first. In deciding whether to prosecute, they will consider any action the builder has taken to try to remedy the situation.
- The time limit for bringing proceedings under the Consumer Protection from Unfair Trading Regulations is 12 months from discovery of the offence (May 2015). Officers decided not to begin a formal prosecution under these Regulations during this period as Mr Y was repaying the money. They explained to Ms T that issuing legal action may cause Mr Y to stop the payments. Ms T agreed to this approach. By the time Mr Y stopped making payments the time limit for bringing proceedings under the Regulations had expired.
- Officers considered a prosecution for an offence under the Theft Act was not sustainable. To prosecute Mr Y for such an offence they would need to prove he intended to permanently deprive Ms T of her property. As Mr Y had repaid a large proportion of the money, it would have been difficult for officers to successfully argue this was the case. The delay in repaying all the money was because Mr Y could not work due to his accident. Officers also decided prosecution for an offence under the Fraud Act was not sustainable.
- As stated above, the Council is not required to prosecute someone who commits an offence. If they have cooperated with the enquiry, or shown a willingness to compensate, it may not be appropriate to bring criminal proceedings. In this case, officers considered Mr Y’s willingness to return the money owed to Ms T was a material factor to consider when deciding what action to take. Although Mr Y took some time to repay the money, officers were satisfied there was a genuine reason for the failure to continue with the repayments after his accident. They decided that prosecuting him was not warranted in the circumstances. This was a matter for their professional judgement. Officers sought legal advice on the prospects of a successful prosecution and acted on that advice. In these circumstances, there are no grounds for the Ombudsman to question the merits of the decision.
- Officers advised Ms T on several occasions that it was open to her to enforce her contractual rights against Mr Y by making a claim in the Small Claims Court. They explained she did not need to employ a solicitor to do this and trading standards officers would advise her about the steps involved.
Failure to assist Ms T in recovering her money
- Ms T says trading standards failed to help her recover the money owed by Mr Y. She says the repayments were instigated by her solicitor and not trading standards.
- I find trading standards did help Ms T recover the money owed by Mr Y. Officers recommended setting up a repayment plan and obtained Mr Y’s agreement to pay the solicitors’ costs for doing so. Officers frequently chased Mr Y for payment by both telephoning and visiting him.
- Trading standards cannot require a trader to make payments but can only request this. Officers correctly advised Ms T on several occasions that she could issue her own legal action to recover the money.
Failure to ensure Mr Y carried out remedial work
- Ms T says officers failed to ensure Mr Y carried out the remedial work to her property. The work was still not completed several months after contacting trading standards so she had to pay another builder to do it at a cost of £8000. She says she has not been able to recover this money.
- Trading standards does not have the power to require a trader to carry out remedial work but can only request that he does so. I am satisfied officers tried to get Mr Y to carry out the remedial works by mediation. He did start the works in September 2015 but did not complete them.
- Ms T could have made an application to the court for an order requiring Mr Y to remedy the defective work but she decided to get the work done by another contractor. It is open to her to make a claim against Mr Y in the Small Claims Court to recover the cost of this.
- For the reasons set out above, I do not uphold Ms T’s complaint. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman