Decision : Not upheld
Decision date : 27 Jan 2020
The Ombudsman's final decision:
Summary: there is no fault by the Council in its consideration of Mr F’s concerns about the quality of specialist glass units fitted in his home which is a listed building
- The complainant, whom I shall refer to as Mr F, complains that the Council is at fault in failing to ensure that the replacement windows fitted into his Grade II listed home conformed to the Construction Products Regulation. The work was paid for with a Heritage Lottery Grant paid to the Council to carry out work to buildings of historical significance in its area. Mr F says the replacement windows are of poorer quality than those there previously and does not accept the Council’s argument that they do not need to comply with the CPR due to the unique nature of them. He complains the Council is wrong to refuse to take action now to ensure the glass units conform to the CPR standards.
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 discussed the complaint with Mr F and considered the written information he provided with his complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint. The information I have considered includes:
- copies of documents related to the tendering of the contract, the grant conditions and Mr F’s appointment of a contract administrator;
- details of the evidence the council obtained to inform its investigation of Mr F’s concerns;
- a copy of the legal advice provided by the Council’s legal team; and
- copies of Mr F’s correspondence with the Council.
What I found
What should have happened
- The Construction Products Regulation 2011 (CPR) is a European Union regulation which sets out common rules and standards for construction products across the European Union. A product that conforms with the regulations indicates the product complies with relevant safety, health and environmental regulations. Broadly speaking it requires products to have a CE marking if it is to be sold in the European Union. However, there are specified “derogations” which may mean these requirements do not apply in certain circumstances.
- The UK Construction Products Regulation sets out the enforcement regime for the CPR. Compliance monitoring and enforcement of this falls to councils’ trading standards teams.
- The British Standards Institution (BSI) sets standards for the quality and safety of a range of products.
- The Heritage Lottery Fund distributes funds raised by the National Lottery to fund heritage projects in the UK.
- Mr F says the Council agreed to pay him some of a grant it received from the Heritage Lottery Fund to restore his property which is Grade II listed, of historical significance in the area and in a conservation area. The work included replacing the existing windows with insulated glass units in the property. Insulated glass units are double or triple glazed windows which reduce heat loss and may also have sound sound-proofing capability.
- The Council confirms that Mr F signed a grant agreement with its Townscape Heritage Initiative in 2015. The grant was administered by two council officers on behalf of the Townscape Heritage Initiative. In accordance with the conditions of the grant, the Council confirms that Mr F employed a “Conservation Accredited Professional” (an architect or a surveyor) to act as contract administrator who tendered the works on Mr F’s behalf. Mr F then chose and appointed a builder to complete the work. The Council confirms the Townscape Heritage Initiative paid the builder following certification from Mr F’s contract administrator and that Mr F paid the outstanding balance directly to the builder.
- The Council says that Mr F began raising issues about the glass units with the contract administrator in early 2017. The Council says the contract administrator pursued the matter on his behalf with the builder before Mr F began pursuing the matter with the Council’s trading standards team.
Mr F’s concerns
- Mr F says the contractor fitted a total of 55 of the specialist glass units in his property which, though “kite” marked, did not meet the required CPR standards. Mr F contacted the Council about this. He then complained and says the Council’s response to the complaint was that a kite mark was not required because the property is a listed building. Mr F argues that the listed nature of the building is irrelevant as the glass units are required to have the kite mark as the CPR applies to all glass units and so the Council has paid for the installation of glass units in his properly when they do not comply to the proper standards.
- Mr F first complained to this office in 2018 and at this time the Council told us that it had investigated Mr F’s concerns and found “…no evidence of breaches of the Construction Product Regulations to support enforcement action”. The Council said at that time that as Mr F remained dissatisfied it would obtain legal advice from its legal services department and that the Council would update Mr F when it received this advice.
- In July 2019 Mr F re-submitted his complaint to this office stating that he was now aware that the glass units had not been tested at all so did not comply with the CPR regulations which require that a product must conform to requirements before being placed on the market. Mr F went on to say that the Council held that, having sought legal advice, it had been advised that CPR compliance was not required for a “one off artisan product” such as the glass units manufactured specifically for his property. Mr F argues that advice he has obtained says that it is not the case that compliance is not required for such one-off artisan products.
- Mr F goes on to say that the Council has said that Mr F would need to take legal action regarding the glass units if he wanted to pursue this because the contract was between Mr F and the contractor. Mr F argues that the Council paid the contractor directly. Mr F says his home is now in a state of disrepair.
Action taken by the Council to deal with Mr F’s concerns
- The Council says it concentrated its investigations on Mr F’s concern that the insulated glazed units (glass units) do not meet the Construction Product Regulations. ie that they were supplied without a declaration of performance and without a valid CE mark.
- The Council clarifies that the glass units did have a CE (kite) mark on the label but that Mr F believes there is no declaration of performance supplied for that particular unit by the manufacturer meaning the CE mark is fraudulent.
- The Council says it investigated and established that with window manufacturer’s systems have been approved by BSI and that the CE mark can be applied to their product. The Council was satisfied that a relevant assessment report on the glass units was provided that there is an invoice that demonstrates the glass units were tested. It says it therefore concluded that the CE mark was not fraudulent and that the glass units met the required standard.
- The Council says that Mr F alleged that the company provided glass units for his home that were different to those tested and contacted the BSI to see if this was the case. The Council says that the BSI indicated that the glass units were possibly not compliant due to the size of the spacer bar (the space between the panes of glass) but they did not formally confirm that this was definitely the case.
- The Council says that it therefore concluded that without the BSI categorically confirming that the units did not comply then there was insufficient evidence to prove beyond reasonable doubt that an offence had occurred.
- The Council says that as Mr F continued to ask the Council to take enforcement action the Council reviewed the legislation to reassess the situation. Having done so it concluded that the legislation allows for a “derogation” from drawing up a declaration of performance where a product is “manufactured in a traditional manner or in a manner appropriate to heritage conservation and in a non-industrial process for adequately renovating construction works officially protection as part of a designated environment or because of their special architectural or historic merit”. This means that the Council concluded that as the glass units had been specially manufactured for an historic building they were exempt from meeting the performance/quality requirements that would otherwise apply and so the manufacturer was exempt from providing a declaration of performance.
- As Mr F continued to disagree with the Council interpretation of the law, its officers sought a legal opinion from the Council’s legal team. The legal team provided advice confirming that the exemption in the law applied in this case and that enforcement action was not necessary. I have seen this legal advice and confirm that this advice concludes that the grounds for a derogation under the CPR regulations were met and that therefore there were no grounds to take enforcement action. The Trading Standards Team accepted this advice and decided it should not pursue enforcement action.
Is the Council at fault and did this cause injustice?
- I am satisfied that the Council has properly and thoroughly investigated Mr F’s concerns about the quality of the glass units and his understanding of the requirement that they comply with various standards. I find no fault in the way the Council has considered these concerns. I recognise that Mr F does not agree with the decision the Council has reached but it has carefully investigated and sought legal advice before reaching its decision. Its decision is one that it is entitled to make. It is not my role to consider whether its decision was right or wrong in the absence of fault in the way the decision was reached.
- I understand the Council advised Mr F that he could consider taking legal action against the builder. If he is dissatisfied with the quality of the work including the quality of the materials used by the builder this would seem to be an option. As it was Mr F that appointed and contracted the builder this is a matter for him to pursue and not the Council.
- There is no fault by the Council in its consideration of his concerns about the quality of glass units fitted in his home.
Investigator's decision on behalf of the Ombudsman