Summary: Mrs X complained the Council did not properly decide whether to prosecute a trader she complained about. We found the Council was at fault as it did not keep records showing how it decided not to prosecute the trader. To remedy the injustice caused the Council agreed to apologise to Mrs X and ensure it keeps records of its decision making in future.

The complaint

1. Mrs X complains the Council did not properly decide whether to prosecute a trader she reported concerns about after they had carried out building work to her property.
2. Mrs X said the trader left her property in an unsafe condition and did not complete the work and she is concerned they may do the same to others.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’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 considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Trading standards

8. The Council’s Trading Standards department has a Prosecution Policy which sets out its approach to prosecution. The policy says the Council may prosecute an individual or business where they:
• Deliberately, negligently, or persistently, are in breach of legal obligations which were likely to cause material harm to others.
• Endangered to a serious degree the health, safety or wellbeing of people, animals or the environment.
• Assaulted or obstructed an Officer in the course of their duties.
• A prosecution would have a significant positive impact on maintaining community confidence.
9. When deciding whether to prosecute the Council applies two tests:
1. The evidential test. This says prosecutors must be satisfied there is enough evidence to provide a realistic prospect of conviction.
2. The public interest test. This says the Council will only prosecute where it considers it is in the public interest to do so.

What happened

10. In summer 2024, Mrs X employed a builder to work on her property. In Autumn 2024, the builder walked away from the job at Mrs X’s property and left the work unfinished. Mrs X said the builder left her property in a dangerous condition and she had already paid the builder a large sum of money.
11. In late 2024, Mrs X reported the builder to the Council’s Trading Standards department. The Council opened an investigation into this builder. The Council received several other reports about this builder and included these in its investigation.
12. In late January 2024, Trading Standards told Mrs X it was not going to prosecute the builder. Trading Standards said it could not meet the tests for a prosecution but would contact the builder to discuss the complaints received. Trading Standards said it would monitor whether it received any other complaints about the builder.
13. Mrs X responded to Trading Standards to question how it decided against prosecuting the builder. Mrs X explained without prosecution the builder could just keep on doing this to other people in the community.
14. Trading Standards responded to Mrs X again and told her it reviewed the evidence it received about the builder and decided it did not meet the tests for prosecution. The Council said it could only take a case through the courts if it met the evidential and public interest tests.
15. Mrs X responded to Trading Standards and questioned which parts of the test her complaint failed on. Trading Standards passed Mrs X’s communication onto the Council’s complaints team to respond through its complaints process.
16. In February 2025, the Council responded to Mrs X’s complaint. The Council said Trading Standards considered all the evidence Mrs X provided and decided it could not beyond a reasonable doubt prove an offence took place. The Council also said there would not be a realistic prospect of conviction. The Council explained it could not share evidence received from other complaints but considered this evidence. The Council said it recorded the complaints received about this builder on its system so if the Council received further complaints it had a record of the builder.
17. Mrs X remained dissatisfied and complained to the Ombudsman.

Analysis

18. The Ombudsman is not an appeal body. This means we cannot take a second look at the Council’s decision not to prosecute and decide if it was wrong. Instead, we look at the processes the Council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether Mrs X disagrees with the decision.
19. In this case the Council decided the evidence it received did not meet the tests for prosecution. It did not explain its reasons for not prosecuting to Ms X, nor did it record in its investigation paperwork why the complaints did not meet the tests for prosecution. This was fault. Without a record of the Council’s decision making Ms X cannot be sure it properly considered her complaint about the trader.
20. In response to the draft decision on this complaint, the Council explained why it decided not to prosecute the trader. The Council said of the three complaints it received, two of them already had works carried out to fix the work by the trader. The Council explained it could therefore not get an independent surveyor to verify the original trader’s works for these complaints and inspect them in-situ. While it could ask an independent surveyor to look at the remining complaint, it decided that one complaint would not be enough to meet the evidential and public interest tests for prosecution.
21. Normally where we have found fault with how the Council came to a decision, we would ask it to re-look at the matter again. In this case the Council has now explained how it decided not to prosecute. This is a decision the Council is entitled to make and I am satisfied it has considered the information from the complaints and its Prosecution policy. There is no merit in asking it to re-consider the matter again.

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Agreed Action

22. Within one month of my final decision the Council agreed to carry out the following:
• Apologise to Mrs X for the above fault. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance
• Send a reminder to Trading Standards officers that they should record the reasons for not prosecuting in the investigation documents, so there is evidence of Trading Standards decision making.
23. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice. The Council agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman