Summary: Mr and Mrs X complain about the quality of damp-proofing work completed in their house since they received a vulnerable persons’ grant from the Council to fund it in 2013. The Ombudsman concludes although two attempts to resolve Mr and Mrs X’s damp issue have clearly failed, this was not because of fault by the Council. There was fault in how the Council explained its involvement in the later works, which caused some uncertainty, but it has already offered a remedy we consider satisfactory for this.

The complaint

1. Mr and Mrs X complain about the quality of damp-proofing work completed in their house since they received a vulnerable persons’ grant from the Council to fund it in 2013.

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What I have investigated

2. The events in this case date back to late 2013, when Mr and Mrs X first received a vulnerable persons’ grant from the Council. However, the law says we should normally only investigate complaints about events which happened in the 12 months before a complaint to us, unless there is good reason to look back further.
3. Mr and Mrs X first complained to the Council about the first failed damp-proofing work in March 2016. This led to a second set of works in April 2017 and since that point they, through Ms Y and another relative, have been in contact with the Council to complain. I am therefore satisfied this is an ongoing complaint. However, I can only justify in investigating the events around the April 2017 works and what has happened since. It would not be reasonable for me to go back as far as 2013.
4. Having carried out enquiries, I believe there is enough good-quality, documentary evidence to enable me to reach a view on the complaint on that basis. Also, a manager who had significant involvement at the time still works in the same department.

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The Ombudsman’s role and powers

5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
7. 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)
8. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)

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How I considered this complaint

9. With their consent, Ms Y represented Mr and Mrs X in bringing their complaint to the Ombudsman. I spoke to Ms Y and considered the documents she sent me. I wrote to the Council to make enquiries and reviewed the material it sent in response.
10. I shared a copy of my draft decision with Ms Y and the Council and I invited them to comment on it.

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What I found

11. Mr and Mrs X live in a house which is of non-standard construction and has a recognised issue with damp on the ground floor. They are owner-occupiers. Mr X has an illness which damp conditions make worse. In late 2013, Mr and Mrs X entered an agreement with the Council for a vulnerable person’s grant to fund works to remove the cause of the recurring damp.
12. The Council’s vulnerable persons’ grant scheme involved making a loan to Mr and Mrs X, secured against their property. However, as long as they do not sell the house in the next 10 years, the Council will cancel the debt. The Council’s 2013 agreement with Mr and Mrs X included the services of its in-house Home Improvement Agency (HIA). It charges 10% of the cost of the work and in return took on a role as liaison between Mr and Mrs X and the contractor identified to do the work.
13. The grant agreement paperwork signed in 2013 by Mr and Mrs X saw them agree they understood the Council did not, “…directly employ contractors to do this work and that any defects liability should be resolved through the contract between myself and the contractor”. The Council says this applied even to work carried out through its HIA.
14. Issues arose with the work carried out by the first contractor, who I will refer to as Contractor 1. These became noticeable in 2015 when the damp returned. This is all I need to say about this, as these events are outside of my investigation.
15. The Council sent a qualified officer to inspect the problem in March 2016. It says the officer identified the probable cause but Mr and Mrs X were sceptical and so it agreed to pay for an independent survey to confirm it. The surveyor wrote his report in June 2016. The Council says it told Mr and Mrs X they needed to make a claim against Contractor 1 for defective work. Its officer offered to help with this.
16. Although it took some time, and resistance from Contractor 1, the Council eventually secured a refund of £2,500 for Mr and Mrs X. It then offered them a further grant if they wanted to find another contractor to deal with the damp. The Council says it liaised with Contractor 2, including accepting Mr and Mrs X request to delay the start of the work until April 2017. Mr and Mrs X moved out for a few days while the work was underway. The Council agreed to visit and inspect the work each day the contractors were on site.
17. The Council says it agreed to do this because Mr and Mrs X, Ms Y and other relatives refused to deal with the contractors themselves. They instead held the Council responsible for the failure of the first work. The Council points out for the work completed by Contractor 2, it’s HIA had no involvement at all. It says this is clear because it did not make the 10% charge. The Council says it did more than the grant agreement obliged it to do because it wanted to help the family resolve the problems they were experiencing. However, it says it made it clear on many occasions, both verbally and in writing, overall responsibility for the work was still with Mr and Mrs X.
18. The remedial works did not resolve the problem and there was still damp. Mr and Mrs X were still unhappy and now stressed by the situation too. Ms Y believes the Council gave wrong instructions to Contractor 2, causing the work it carried out in April 2017 to be ineffective. Ms Y accepts there is a 10-year guarantee for those works, but says the guarantee is ‘worthless’ because the Council’s instructions caused the issues, not Contractor 2’s workmanship.
19. The Council says it only gave Contractor 2 instructions in line with the independent surveyor’s recommendations. It says its officer copied and pasted the relevant section into the tender document. Also, while it accepts its officer carried out site inspections while the work was going on, it gave no different instructions on these visits. It has provided worksheets which recorded the three visits that took place.
20. Ms Y says Mr and Mrs X still have a damp problem in their house and have not received proper compensation for the two failures of the works carried out. She says they have also had to pay to decorate the affected rooms twice. Ms Y wants the Council to cancel the grant agreement, and with it the debt, and compensate Mr and Mrs X for their costs and the stress caused.
21. After considering Ms Y’s complaint, the Council offered Mr and Mrs X £300. This was in recognition of the fact there had been occasions its officers were slow to respond, and then often only after repeated follow-ups from Ms Y or others. However, it denied responsibility for the failed works and offered no further compensation.

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Analysis

22. The Ombudsman can investigate local authorities such as the Council and, where private companies provide services on its behalf, we can hold the Council responsible for their actions too.
23. My first consideration was the contract signed by Mr and Mrs X with the Council. The original agreement in 2013 is clear the Council is not responsible for the standard or result of any works. It says Mr and Mrs X must resolve any dispute directly with the contractor. They signed a further grant agreement in May 2017, just after Contractor 2 had finished. This says the Council, “…accepts no liability for any consequences, whether direct or indirect, that may come about…” from the work. It goes on to say, “It is acknowledged and agreed that the Council shall have no responsibility for the manner or cost in which the Project is carried out.”
24. Although contract law is a matter for the courts, taking a common-sense approach there is no other way I can interpret the agreement than making it clear Mr and Mrs X were employing the contractors to do the work. I am satisfied this is not a case where the Council commissioned a private company to do work on its behalf.
25. I therefore have to consider what other obligations the Council had. In this case, there is no law or other policy making it become involved in the way it did. The Council essentially says it used its discretion to help Mr and Mrs X because they were vulnerable. There is some merit in that approach however, once it agreed to do something, I would expect the Council to do it without fault. It cannot escape all responsibility just because it acted through its own choice.
26. There is no evidence at all to support Ms Y’s allegation the Council caused the works carried out by Contractor 2 to go wrong. Officers copied and pasted the recommendations from the independent damp surveyor’s report. I have seen both that report and the specification sent to the contractor. They match. I accept the Council decision to rely on the independent damp surveyor’s report was reasonable and so it was not fault to follow its recommendations. It was open to Mr and Mrs X to seek a second opinion before the work started, or take responsibility for instructing Contractor 2 themselves, if they wished.
27. Although a Council officer visited daily and inspected Mr and Mrs X’s house while Contractor 2 was working on site, this was because Mr and Mrs X had decided to not be there. However, their absence does not overcome the fact Contractor 2 was working for them on their own private property. The Council also signed off the work at the end, but this was simply recognition it was complete for the purposes of the grant, rather than any detailed sign off or quality check.
28. I think it is arguable in this case the Council blurred some lines through its actions. However, what it did was broadly in good faith. It was clearly trying to help where it was under no strict duty to do so. I am sure other local authorities would simply have referred Mr and Mrs X back to the terms of the grant agreement they signed, which absolves the Council of responsibility, and taken no further action.
29. Although it is clear Mr and Mrs X’s expectations of the Council were very high, it is possible it contributed to their outlook. However, the grant agreement was clear and there is no evidence the Council ever waived the terms limiting its liability. Nor did Mr and Mrs X ever ask it to.
30. Where things did go wrong was in failing to make sure Mr and Mrs X were absolutely clear about the Council’s intentions, what it would and would not do, and the time it could take. It should have done this in writing, given the heavy involvement from the Council was complete voluntary and contradicted the agreement it already had with them to some extent. Instead, partly because of handovers to different managers and officers, it does not appear this ever happened. The failure to do this was fault.
31. This caused a degree of confusion and delay for Mr and Mrs X, and Ms Y who was now complaining on their behalf. I believe they may have considered other potential resolutions if the Council had made its role less ambiguous. This is an injustice we would normally recognise and remedy.
32. However, in this case, the Council has already offered £300 in recognition of the time and trouble it put Mr and Mrs X to through failing to respond in a timely way or give consistent information. £300 is at the top of our recommend scale for remedying injustice in the form of time and trouble. As the evidence does not support going beyond the top of the scale, I will not propose any further remedy.
33. If Mr and Mrs X are still unhappy about the quality of the work carried out, their recourse seems to be with the contractors involved rather than the Council.

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Final decision

34. The Council was not responsible for the work carried out by contractors at Mr and Mrs X’s house, and so was not at fault for the unsatisfactory result. There was fault in how it communicated its intentions to them but the remedy it has already offered is satisfactory.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman