Summary: Mr C says the Council was at fault for various failures related to his complaint about a rogue builder. Mr C says he and his wife have suffered injustice because of their distress and the amount of time Mr C spent investigating the builder. The Council was at fault for a failure to respond to an email and a telephone call. It has already changed its processes to prevent a recurrence. It has agreed to pay Mr C £100 in recognition of his and Mrs C’s distress and the time and trouble he was put to.

The complaint

1. The complainant, who I have called Mr C, say the Council is at fault for its failure to investigate a rogue builder, Mr B. He says he and Mrs C have suffered injustice because of the time and trouble Mr C has taken to investigate Mr B and the distress suffered by Mrs C.
2. Mr C says the Council was at fault for:
1. A failure to respond to an email sent by the Citizen’s Advice Consumer Service (CACS) to the Council’s Trading Services department.
2. A failure to respond to a phone call from CACS to Trading Services.
3. Mr C says he is seeking:
1. an explanation of why his allegations against Mr B were not acted on and to know whose fault it was.
2. An independent trading standards department to look into the case.
3. Compensation for the distress caused.
4. New legislation requiring builders to provide certified insurance documents.

Back to top

The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. 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)
5. 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)

Back to top

How I considered this complaint

6. I spoke to Mr C. I wrote an enquiry letter to the Council. I considered the information provided and applied any relevant law and guidance.
7. Mr and Mrs C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

What should happen

8. Every Council must operate a trading standards department. Referrals to trading standards departments should be made through the Citizens’ Advice Consumer Service (‘CACS’). The CACS should notify the complainant’s home authority of any complaint.
9. CACS sends information to councils in one of two ways:
1. A referral: This generally indicates a breach of criminal legislation or is in some other way significant due to that council’s priorities; and
2. A notification. This usually occurs where there has been a breach of civil litigation.
10. Notifications and referrals are made electronically through a dedicated system. Councils are required to pick up referrals but have discretion as to whether to monitor notifications.
11. Where a referral is made to a complainant’s council, the business’s home council automatically receives a notification.
12. The Ombudsman does not consider Citizens Advice to be acting for and on behalf of the local authority when providing such advice, as this is a discretionary function of councils which the vast majority have chosen to no longer provide, and the service is not commissioned by them. 

Council’s policy

13. The Council’s policy is to focus its prosecution powers only on the most serious offenders. It says it will focus on those who, the evidence suggests, have been carrying out illegal activity over a prolonged period or with malicious intent. It says it will consider the strength of evidence against a trader and see whether it would be likely that prosecution would be successful or in the public interest.
14. The Council says it will also look at whether other agencies might be better placed to prosecute. If, as in this case, there are serious allegations (of terrorist activity) which are beyond Trading Standards’ remit, its policy says it will allow the most suitable agency, such as the police, to take the lead.
15. There are time limits in place for some offences which come under Trading Standards’ remit.

What happened

16. In 2017, Mr and Mrs C bought a house in the Council’s area. They wanted to completely refurbish it and asked several builders to provide quotations. The works were set to cost £250-£300,000. They chose Mr B.
17. Mr C says he later discovered that Mr B had showed him fraudulent insurance and address details. Mr B began work in July 2019. Mr C says he then illegally disconnected the gas and electricity and carried out substandard work which left the house dangerous and uninhabitable. He took money from Mr C for materials but never paid the suppliers. Mr C says Mr B was not VAT registered but charged Mr C VAT.
18. Mr C says he visited the house after a week and found the house in a terrible condition. He says he also found bombmaking literature that led him to believe Mr B might be a terrorist. He asked Mr B to leave the site. He says that, overall, he is £100,000- £150,000 out of pocket and is still living in rented accommodation.
19. Mr C says he tried to contact Mr B repeatedly but Mr B blocked his calls. He went to the police who said he had to go to trading standards via CACS.
20. Mr C contacted the CACS which, in turn, sent an email to Trading Standards on his behalf. However, the email went to a disused email inbox and so no one responded to the complaint. Mr C later emailed further information to the CACS which, again, sent it to Trading Standards.
21. Mr C later discovered no one had responded to CACS’s email and complained to the council which operated Trading Standards. The Council replied saying:
1. The initial contact from the CACS to Trading Standards went to an old email address. The Council accepted that it was responsible for updating this email. It added that the original call from the CACS had not been properly recorded.
2. Trading Standards could not now investigate Mr B because it must begin investigations within a year of initial contact. However, on the facts, Trading Standards would not have been able to investigate in any event. It said:
1. Some issues were for other bodies to investigate (the police, gas and electricity safety regulators)
2. Other matters did not meet the threshold for investigation. They said:
1. The quality of work was not unlawful.
2. The fact that there had been a bogus address on the quote was not sufficiently serious to trigger a criminal investigation.
3. The evidence suggested that it was not in the public interest to investigate.
4. Mr C said Mr B had overcharged for gas disconnection and radon protection. However, Trading Standards argued that it could not know whether the charges were justified or not but Mr C could consider taking Mr B to court.

Was there fault causing injustice?

22. The Council has accepted that it is at fault for Trading Standards failure to act on Mr C’s initial complaint. I agree. The Council has provided further details about the processes that led to this error.
23. The Council has also explained its decision not to prosecute in this case. It said that, ‘at best there were a handful of relatively minor offences that fell within our jurisdiction, most of which could have been quite easily rebutted by the trader’.
24. The Council has explained that it subsequently required two senior officers to examine the case file who both found that prosecution was not in the public interest in this case as the facts did not meet the required threshold for commencing an investigation. The Ombudsman cannot find fault with a council for making a decision which considers all the relevant information because a complainant disagrees. There must be fault in the way the decision is made. I have seen no evidence of such fault.
25. The Council has accepted that it was at fault for three errors of customer service which stemmed from the fact that it did not know that Mr C was expecting Trading Standards to investigate. Trading Standards accepts the following fault:
1. Its ‘connecter’ software which transported information into its database was not able to update existing case records and cannot notify it automatically of new updates to existing cases. The Council says it was not aware of this problem before this case but has put in place a new process to allow such cases to be telephoned through to ensure that Trading Standards is aware of them.
2. A failure to respond to a voicemail. Trading Standards says it can see from its records that it received a voice message in August 2019 which was forwarded to the relevant officer but that this officer was off-sick that day. Another officer covered for him but there is no record of what action, if any, that officer took. Trading Standards says it has undertaken extensive training to prevent such an error occurring again and does monthly sweeps of the database to prevent similar errors in future.
3. Failure to respond to an email. The Council says it also failed to react to an email sent to it by CACS. This was because CACS had out-of-date details on its systems for the Council’s Trading Standards. This email address had not been used for some years. The report was marked ‘no commitment to contact’ so Trading Standards did not know Mr C was expecting a response.
   
   The Council accepts it should have updated its records with CACS. However, it says that CACS should not have used this address anyway, as it has a system to use another, more up-to-date email. CACS does not, itself, fully understand why it used this email address. It says that a trading standards officer who did not normally work with CACS sent the email. However, CACS would immediately have received an automatic ‘undeliverable’ notification’ so should have been aware that the email had not been received. The Council says it updated the email address as soon as it found out.

Remedy

26. Mr C said he wanted:
1. an explanation of why his allegations about Mr B were not acted upon and to know whose fault it was.
2. An independent trading standards department to look into the case to discover what went wrong.
3. Compensation for the distress caused.
4. New legislation requiring builders to provide certified insurance documents.
27. Explanation/investigation. As a result of the Council’s investigations and this decision, Mr C now has information about a) above. Therefore b) above is not necessary.
28. Compensation. Most of the distress Mr and Mrs C say they suffered appears to have been caused by Mr B. Therefore, it would be wrong to recommend that the Council should pay them a large sum. Further, the Ombudsman does not recommend compensation payments. Instead, we sometimes recommend payments in recognition of distress caused and time and trouble taken. The Council’s fault did cause them some additional distress so I have made a recommendation of this kind.
29. Legislation. The Ombudsman has no power to require the central government to pass legislation.

Back to top

Agreed action

30. The Council has agreed that within two weeks of the date of this decision, it will write to Mr and Mrs C and apologise and pay them £100 in recognition of their time and trouble and the distress caused.

Back to top

Final decision

31. I have decided the Council was at fault for the actions of Trading Standards. The Council has agreed to my recommendation. I have closed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman