Decision : Not upheld
Decision date : 22 Oct 2019
The Ombudsman's final decision:
Summary: Mr X complains the Council was at fault in the way it responded to his concerns about the work of two builders at his property. The Ombudsman has found no evidence of fault in the way the Council considered these matters and has completed his investigation.
- The complainant whom I shall refer to as Mr X complains about decisions of the Council’s Trading Standards service not to take action against two builders who carried out work to his property.
- Mr X says he paid for the building works which remain unfinished causing him distress. Mr X says Trading Standards failed to inspect the building works and act on his complaints.
- Mr X says Trading Standards advised him to take civil action against the builder. Mr X is reluctant to take legal action because he considers it is difficult to enforce a judgement against a limited company. He believes the builders as the company directors will liquidate the companies while keeping the assets. And so, this makes it difficult to take legal action against the individual director. Mr X considers because of this the Council should have taken action to deal with the matter on his behalf.
- Mr X also complains about the Citizens Advice Consumer Service (CACS), its contact with the Council and failure to disclose documents and a recording of his first call about the builders.
What I have investigated
- I have investigated Mr X’s complaints about his dealings with the Council and its Trading Standards Service. The final part of my statement explains my reason for not investigating the actions of the CACS.
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 read the papers submitted by Mr X and discussed the complaint with him. I considered the Council’s comments on the complaint and the supporting documents it provided. I have explained my draft decision to Mr X and the Council and considered comments.
What I found
- The law allows councils discretion on trading standards matters about whether and to what extent to investigate a particular complaint. Councils make their decisions in the general interests of the public rather than the interest of an individual complainant.
- The Council says its Trading Standards service does not have sufficient resources to enforce all matters consumers complain about. So, it uses an intelligence led basis and directs its resources and discretion to issues causing the most harm to the community as a whole.
- All consumer complaints are now dealt with via the CACS. This is a national Government-funded service run by the National Association of Citizens Advice Bureaux offering advice and guidance on consumer issues.
- CACS assesses the information provided by a consumer and will refer cases to the relevant council trading standards to consider further action. The cases can be ‘notified’ or ‘referred’ either with or without commitment to contact the consumer, depending on the agreement between CACS and the trading Standards concerned. The Council says it usually only actively considers ‘referred’ cases for further investigation. It does not actively consider cases identified as ’civil’ matters for further investigation.
Background to the complaint
- Mr X contacted CACS in June 2018 to complain about work to his property carried out by a building firm. Mr X reported the builder had taken his money, caused damage, left work unfinished and walked away from the job. The Council has access to CACS’s records on cases. In the record for Mr X CACS advised him to get an independent check and report on the work done, its value and quality.
- CACS assessed the case as a ‘civil matter’ rather than a criminal one and notified both the Council and the council where the trader was based. As it is a civil case Mr X can sue the builder under civil law to claim damages. The Council says the case was not ‘referred’ to it as CACS did not consider it met the criteria in its agreement with the Council. This is generally a referral without commitment.
- The Council says a duty officer in Trading Standards will look daily at referrals and notifications from CACS. The Council took no further action on Mr X’s case as it was classed as a civil matter. The Council says CACS correctly notified the case to the Council according to its agreement.
- The Council says Mr X did not arrange for an independent report on the work as advised but appointed a different firm of builders to continue the work.
- The Council says had Mr X followed CACS’s advice on his first contact and obtained an independent report on the works by the first builder this may have identified the quality and value of the work carried out. And CACS could have provided further advice based on the report. The Council says if the report identified potential criminal offences then CACS would have referred the case to Trading Standards to investigate.
- Mr X contacted CACS again in August 2018 about issues with the second builder. Mr X raised concerns about the quality of building works, the lack of a contract, invoices and unfinished work. Mr X was unhappy with the money the builder was seeking for the works. Mr X mentioned he was suffering ill health. Because of this the CACS adviser contacted the Council’s Trading Standards who agreed the matter should be referred with a commitment to contact the consumer.
- A Trading Standards officer spoke to Mr X who explained he had employed the second builder to complete the unfinished work of the first builder. Mr X considered the second builder had taken advantage of him and his ill health.
- The officer noted Mr X had engaged the second builder without a quote or contract. The officer advised it was difficult to look at the verbal contracts. And as there was nothing in writing it would be difficult to prove one way or another what work was intended to be carried out and at what cost.
- The officer agreed to write to the second builder to see if they would respond and negotiate. The officer advised he had no statutory powers to get involved in the specifics of a contract. He also advised it would not be possible to approach the first builder about the work Mr X alleged they did or failed to do as it had been undone by the second builder. The officer said there was now no evidence of the works. The officer looked at the national database of businesses used by Trading Standards where problems have been identified by consumers (or other businesses). The officer found no adverse recordings about either firm of builders.
- The second builder responded to the Council. The Council considered the matter further. It advised Mr X officers did not consider there were criminal offences that could be pursued, and Mr X needed to resolve the matter under civil law. The Council noted Mr X’s reluctance to do so but says enforcing a County Court judgement is complex, and Mr X should seek the advice of a solicitor about taking such action. The Council advised Mr X to contact his MP to lobby for a change in the law to make directors personally liable for judgements against their limited companies.
- The Council told Mr X about Trading Standards’ limited resources, and powers to pursue all matters complained about. And it cannot do so if the evidence is no longer available in a suitable state or is insufficient to allow them to assess any alleged offence with enough certainty. This is because for civil law disputes the level of proof needed is on the ‘balance of probabilities’ but for criminal offences it needs to be ‘beyond reasonable doubt’.
- The Council has the discretion to take enforcement action against a business if it decides the action is justified. It takes an intelligence-led approach to enforcement, including looking at information recorded onto a national database.
- Although the Council takes this approach, it can still act after receiving individual complaints if it considers such action appropriate and necessary.
- It is not the Ombudsman’s role to reconsider evidence which a council has looked at in deciding whether to act in response to a complaint. However, councils must fully consider complaints, and must explain why they have decided to act – or not to. If this does not happen, then we may find fault with a council. If fault is identified which raises questions about a decision, then we may recommend the council reconsiders the decision.
- I understand Mr X disagrees with the decision not to investigate the builders. However, Trading Standards has confirmed it was not aware of any substantiated complaints against the builders. The Council received a notification from CACS the matter against the first builder was a civil one. When the Council considered the matter further there was insufficient evidence for it to take any action.
- With the second builder the Council contacted the firm on Mr X’s behalf. But the Council did not consider there was evidence of a criminal offence and did not consider it was in the public interest to pursue. The decisions not to take any further action against both builders are ones of merits and I have not seen any evidence of fault in how the Council reached these decisions.
- I am aware Mr X is reluctant to take any civil action against the builders. But the law has provided this avenue as a means of pursuing his concerns further and possible redress.
- I have completed my investigation. I have found no evidence of fault by the Council in the way it dealt with Mr X’s complaints about the work carried out by two builders.
Parts of the complaint that I did not investigate
- I have not investigated Mr X’s complaints about the actions of CACS as the Ombudsman has no jurisdiction to do so.
Investigator's decision on behalf of the Ombudsman