Summary: Ms X complained the Council’s Trading Standards department misled her into believing it would take court action on her behalf against a builder responsible for defective works to her property. She says this caused her distress and unnecessary time and trouble. The Council is at fault. There is no evidence the Council intentionally misled her, but the lack of clear records leads to uncertainty about what Ms X was told at the start of the investigation. The Council will apologise to Ms X and pay her £200 for the uncertainty, distress and time and trouble caused to her. It will also review its procedures.

The complaint

1. Ms X complained the Council’s Trading Standards department misled her into believing it would take court action on her behalf against a builder responsible for defective works to her property. She says she provided information and evidence to the Council to support its case for over a year before it decided it would not take action, closed the case and told her to consider private civil action.
2. She says the Council’s actions have caused considerable distress, put her to unnecessary time and trouble and delayed her pursuing her own legal case or other action to rectify the works.
3. She wants the Council to accept it misled her, provide a financial remedy in recognition of the distress caused and improve its services to prevent others being misled in similar circumstances.

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The Ombudsman’s role and powers

4. 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)
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)

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How I considered this complaint

6. I read Ms X’s complaint and spoke with her about it on the phone.
7. I made enquiries of the Council and considered information it sent me.
8. I considered our Guidance on Remedies.
9. Ms X and the Council had the opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Background information

Trading standards

10. The Council’s Trading Standards department has an enforcement policy which sets out its role and approach to enforcement.
11. The policy says any enforcement action taken is aimed at ensuring businesses comply with the law. It will ensure that any enforcement action is proportionate to the risks involved and to the severity of non-compliance observed.
12. The list of potential outcomes includes:
• Providing advice and guidance to businesses;
• Investigation and prosecution;
• Obtaining legal undertakings to comply from businesses (formal agreements), which can then be enforced through the civil courts if a business does not comply; and
• Issuing financial penalty notices.
13. The Council says that when it has an initial conversation with a potential witness, it will explain the role of Trading Standards and explain what it means to give a statement. It said it would also explain to the consumer their right to take private civil action against the business, should they choose to do this.

What happened

14. Ms X has a degenerative health condition and is a disabled parent. In 2020, Ms X had building work completed at her home by company Z. Ms X was unhappy with the standard of the works and complained to company Z. Company Z agreed to do some remedial work, but Ms X remained dissatisfied. She complained to the Council’s Trading Standards department.
15. The Council contacted Ms X in January 2021 to gather information and discuss her concerns. The Council decided to open a trading standards investigation into company Z, and asked Ms X if she would provide a witness statement and evidence for the investigation. The Council says its officer recalls telling Ms X how the courts work, that Ms X had a right to take private action against company Z in addition to contributing to the Trading Standards investigation and that an investigation would not necessarily lead to court action or prosecution. The officer said they recalled Ms X was distressed during this discussion and may not have taken this information fully on board.
16. Council records do not record details of this conversation but say “I have informed [Ms X] of the course process and havn’t promised anything”. The Council says it considers this is supposed to read “court” process. Ms X says the Council did not explain that her involvement with Trading Standards would not lead to personal redress for her for the defective works. She says she believed the Council was gathering information to support her to take company Z to court to claim for compensation.
17. Ms X agreed to provide evidence and a witness statement. The Council spoke with Ms X several times to gather information. Ms X compiled documentary evidence and sent this to the Council. It also arranged a surveyor to visit Ms X’s property to survey the work completed by company Z. It also engaged with other consumers who had complained about the standard of work completed by company Z.
18. During the summer, the Council considered all the information gathered during its investigation into company Z.
19. It decided the evidence was not strong enough to justify court action against company Z. It decided to take action through a civil enforcement scheme set out in the Enterprise Act 2002. It asked company Z to agree to legal undertakings. Company Z agreed to this and signed these in July 2021. The Council says it is now monitoring company Z’s compliance with the undertakings.
20. In August 2021, the Council wrote to Ms X. It said company Z was now complying with Trading Standards laws. It told her it would not need any further assistance from her and she would not be required to attend court as a witness. It told her she could take her own civil action against company Z, if she chose to do so.
21. Ms X responded to the Council. She said the Council had told her it would support her to take the case to court to get compensation for defective works. She said at no point had the Council told her she should start civil action against company Z, if she wanted to claim compensation. She said if she had known the Council was not going to prosecute and her involvement with Trading Standards was not going to lead to her desired outcome, she would have started civil court action against company Z instead.
22. The Council said it had no power to obtain personal redress for customers. It said it accepted that the Council’s decision not to take court action against company Z had caused her upset and her assertion that the Council had not told her she should start a civil court action against the company if she wanted personal redress. It said it would remind its officers they must ensure consumers are fully aware of the limitations Trading Standards has to achieving financial redress, and that they should consider starting civil action if this is the desired outcome.
23. Ms X remained dissatisfied and brought her complaint to us.

My findings

24. The Council says it told Ms X at the start of its investigation that if she wanted to claim compensation from company Z for defective works, she should start civil court action. However, the records do not show the officer explained this to Ms X or that they checked that Ms X understood the limitations of Trading Standards to achieve this outcome. I would expect the Council to clearly explain this to potential witnesses and to keep a record of this discussion. I cannot know what was or was not said, but the lack of detailed records leads to uncertainty as to whether the Council explained this clearly to her. This is fault.
25. There is no evidence the Council intentionally misled her, but it accepts that Ms X was distressed at the time and may not have taken in the information. Ms X says the Council’s actions have meant she has invested time and energy providing evidence and information to the Council when she could have been putting a case together for civil action instead. Ms X has a degenerative health condition and is a parent, so it is likely her engagement with the Council took her considerable time and effort, over and above what it would take a person without disabilities. Because of these factors, I consider the injustice caused to be more significant. I have recommended a suitable remedy below, based on our Guidance on Remedies and consideration of other similar Ombudsman cases.
26. In order to prevent recurrence of this situation, the Council has said it has reminded its officers to tell potential witnesses of their right to start civil action if they are looking for compensation. However, considering the importance of this, I would expect the Council to do more to ensure this is clearly understood by witnesses.

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Agreed action

27. Within one month of the final decision, the Council will write to Ms X to apologise and pay her £200 to acknowledge the uncertainty, distress and time and trouble caused to her by the Council’s lack of clarity.
28. Within three months of the final decision, the Council will:
• review its procedures for initial meetings with potential witnesses to ensure it clearly explains the role of Trading Standards and potential outcomes, explains the right to take civil action and documents this discussion appropriately in its records.
• consider whether providing written information to witnesses may also be useful, due to the potential for consumer distress associated with Trading Standards complaints and the impact this may have on retaining information.

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Final decision

29. I have completed my investigation. The Council was at fault and has agreed action to remedy the injustice caused and improve Council services.

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Investigator's decision on behalf of the Ombudsman