Decision : Not upheld
Decision date : 28 Jun 2018
The Ombudsman's final decision:
Summary: Mr X complained the Council’s trading standards department did not investigate his complaint about defective gas works and did not publish his negative feedback about a trader on its Trader Register. The Council is not at fault. It made enquiries and considered whether the feedback should be published.
- Mr X complained the Council’s trading standards department did not investigate his complaint about defective gas works. He also complains that trading standards did not record his complaint or negative feedback against this trader on its Trader Register, despite him providing a Gas Safe report confirming the defects.
The Ombudsman’s role and powers
- 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)
- 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 considered the information Mr X provided.
- I considered the information the Council provided.
- I gave the Council and Mr X the opportunity to comment on my draft decision. I have considered their comments before making my final decision.
What I found
- Members of the public can report concerns about local traders to the local Citizen’s Advice Bureau (CAB). The CAB can decide whether to tell the Council’s trading standards department. The CAB may send a “notification”, which means it is telling trading standards for information only or it may send a “referral”, which means there may be some further action trading standards needs to take. Councils have significant discretion about whether to take action against a trader. Councils’ trading standards departments operate in the public interest rather than on behalf of individuals. Trading standards doesn’t have to prosecute a trader even when it is clear that a criminal offence has been committed. They can choose to take no action or to give the trader a warning.
- Gas Safe is the national gas registration body. All gas engineers must register with Gas Safe which issues licenses to carry out gas work. Members of the public can report concerns about the safety of gas appliances to Gas Safe. Gas Safe may send an inspector to inspect the appliance, who will issue a report setting out any safety issues that require further work. Where Gas Safe identifies work falls below its expected standards it will issue a formal notice to the trader to correct those issues within a specified timescale.
- This Council’s trading standards department operates a Trader Register, which is a web-site that intends to “provide an assured source of trusted, local traders” and to promote local service businesses “who are committed to fair and honest trading”. It checks applicants before putting them on the Register and monitors feedback about them.
- Mr X asked Trader 1 to carry out works to property he owns, including work to rectify problems caused by a previous trader. This included replacing a gas boiler. Mr X was unhappy with the work done by Trader 1 and contacted Gas Safe. A Gas Safe inspector inspected the boiler and a gas fire at the property. He found serious defects that he set out in a report.
- Mr X contacted the CAB, which notified the Council on 24 April 2017. This was a “notification”, which means it was for information only. The CAB referred Mr X’s complaint to the Council on 8 May. A Council officer made preliminary enquiries and intended to refer Mr X to Gas Safe. On 13 May Mr X contacted the trading standards department directly. His email showed he had already contacted Gas Safe. However, he had mentioned two traders so the officer emailed Mr X on 15 May to clarify which of them he was complaining about.
- Also on 15 May another Council officer spoke to Trader 1 to find out if there were any issues that might affect his “suitability as member of the Trader Register”. On 18 May this officer spoke to the Gas Safe inspector who had inspected Mr X’s boiler. The inspector explained that Gas Safe was not taking any action against Trader 1 and it was essentially a contractual matter between Trader 1 and Mr X. The Council said Gas Safe was not taking further action because Mr X refused to let Trader 1 access the property to carry out the remedial work its inspector identified.
- Mr X sent the Council’s trading standards department some negative feedback about Trader 1. Council officers considered whether to publish this on the Council’s Trader Register web-site. The Council decided not to publish the feedback because it had doubts about who was responsible for the faults identified by the Gas Safe inspector. The Council was not clear who was responsible for the faults between Trader 1, the boiler manufacturer who apparently gave poor advice to Trader 1 or the previous trader. The Council was also concerned that Mr X’s feedback was potentially defamatory. It knew there was an ongoing court case between Trader 1 and Mr X. It therefore decided to withhold publication until it knew the outcome of that. Following completion of the court action the Council considered its outcome and decided Mr X’s feedback should not be published.
- Trader 1 asked the Council’s trading standards department for a letter confirming that it had not received any other complaints about him. The Council provided a letter dated 5 October 2017, which stated:
“I am writing to confirm that [Trader 1] is a member of the St Helen’s Trader Register and has been since [date]. To date I can confirm that [Trader 1] has received 231 positive reviews, no negative feedback and no complaints”.
It says it did not mention negative feedback from Mr X because of then still pending court case.
- Mr X says the Council’s trading standards was supporting Trader 1 and this influenced the outcome of the case.
- The Council has explained how it checks traders before it allows them to appear on the Trader Register. It has also explained that it reads all feedback received before the feedback goes live on its web-site. The Council has explained that it has not published a small number of reviews because they were duplicates, or the information given was incomplete or the work was not finished. It has explained why it decided not to publish Mr X’s feedback about Trader 1 because of the outcome of the court case.
- Mr X complained and the Council considered his complaint at all three stages of its corporate complaints policy. It has provided copies of its responses at all three stages.
- The first contact by CAB to the Council’s trading standards was a notification, which was for information only. The second contact was a referral. Mr X complained directly to trading standards a few days later. Trading Standards officers contacted Trader 1 and Gas Safe about the complaint. Trading standards is not responsible for investigating concerns about gas safety. It noted that Mr X had reported his concerns to Gas Safe, which had investigated.
- The Council did not need to make enquiries about all issues raised by Mr X. It decided it did not need to take any further action to investigate his complaint about Trader 1 having considered the action he had already taken, the involvement of Gas Safe and the pending court action. It was entitled to decide this because trading standards has discretion about whether or not to take action. It is not at fault.
- The Council has explained why it decided not to publish Mr X’s negative feedback about Trader 1 on its Trader Web-site. The Council was entitled to monitor feedback about Trader 1 and to come to a decision about whether or not to publish individual comments. The Council has explained that it reviewed its decision when the court case was concluded. It again decided not to publish the comment because of the outcome of the case. The Council is not at fault.
- The Council’s letter confirming the number of reviews about Trader 1 did not include details of Mr X’s complaint because that was then part of the court case. I cannot comment on what happened in court. The Council was not at fault for providing this information, which was purely factual.
- The Council has considered Mr X’s complaints through all three stages of its corporate complaints handling process. It provided a full explanation to him of what happened and why it decided not to publish Mr X’s feedback. It also explained how its Trader Register works. The Council is not at fault.
- I have completed my investigation. I have not found fault.
Investigator's decision on behalf of the Ombudsman