West Oxfordshire District Council (17 017 556)

Category : Planning > Building control

Decision : Upheld

Decision date : 21 Sep 2018

The Ombudsman's final decision:

Summary: Mr X complains the Council failed to properly carry out its building control duties in relation to his newly built property. There was fault by the Council which caused Mr X injustice. The Council had apologised, part refunded professional costs incurred by Mr X and carried out a full review of its Building Control Service. In addition to this action it has agreed to my proposal to pay Mr X £250 in recognition of his time and trouble in pursuing matters and to complete the outstanding work to his property.

The complaint

  1. Mr X complains the Council failed to properly carry out its building control duties in relation to his newly built property. It failed to carry out any inspections for 11 months and issued a Completion Certificate despite knowing key building control regulations had not been met. When it became known that fire safety measures may have been omitted from his and other properties the Council delayed in taking remedial action and they have yet to be completed. Mr X has been put to expense and time and trouble in pursuing matters.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. In considering the complaint I spoke to Mr X and reviewed the information he and the Council provided. Both Mr X and the Council were given the opportunity to comment on my draft decision.

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What I found

  1. Most building work, whether new, alteration or extension, requires Building Regulation approval. The Regulations set standards for the design and construction of buildings to ensure health and safety for people in and about those buildings. Approved documents give examples of how the Regulations can be met but these examples do not have to be followed.
  2. The primary responsibility for building work rests with those who commission and those who carry out the work. When carrying out their functions, local authorities will visit at various stages but they will not be present for the great majority of the project and do not act as a ‘clerk of works’. On request, and when satisfied after taking ‘all reasonable steps’ that the Regulations have been met, they must issue a completion certificate. This not a guarantee that all works have been done to the required standard.

Mr X’s case

  1. Mr X bought a new property in a sheltered housing development, where most of the properties on site are timber-framed, and moved in to it early in 2017.
  2. Having moved in, Mr X drew up a snagging list for the developer and at this time became aware of a number of construction defects. Mr X became concerned how the Building Control Completion Certificate had been issued by the Council the previous year when there was evidence of non-compliance with the building regulations.
  3. Mr X wrote to the Council’s Building Control Manager, Officer R, in April 2017, to ask how the certificate had been issued given the evidence of non-compliance with the regulations he had found. He then commissioned his own full buildings survey.
  4. Mr R visited the site in May and agreed with Mr X that the certificate should not have been issued. He told Mr X he would contact the developers to ask that the outstanding work be properly completed.
  5. In the meantime, the surveyors Mr X had instructed reported back highlighting a wide range of defects, some relating to building control defects but the majority relating to non-building control issues.
  6. Dissatisfied with the response he had received from Officer R, Mr X wrote to the relevant Council Director about his concerns at the end of May. He highlighted problems in his property with the damp proof course, the absence of lead flashings on the balcony and inadequate soffit boards. Also, having heard from his neighbour on the matter, he raised concerns about missing fire protection measures in the building structure.
  7. As he had still to receive a satisfactory response to his May letter, at the beginning of July Mr X submitted a formal complaint to the Council about its failure to properly inspect his property to ensure a reasonable level of compliance with the building regulations, including its failure to examine party walls in roof spaces for fire stopping.
  8. Following dissatisfaction with the response he received, and having received a copy of the building control inspection report for his property which showed few inspections had been undertaken and a gap between inspections at one stage of 11 months, Mr X progressed his complaint.
  9. Group Manager Officer Q took over the complaint and met Mr X on site. He wrote to Mr X following their meeting at the end of July and agreed the completion certificate should not have been issued and that the Council would be working to establish why this error had occurred. Officer Q confirmed the Council would be working with Mr X and the developers to ensure rectification of any outstanding building regulation defects and an independent senior building control surveyor would be appointed to oversee this work. Officer Q said a review of Building Control services was taking place and that the service would be the subject of an internal audit to be reviewed by elected members. He told Mr X his request to be reimbursed for the expenses he had incurred would be considered and that the Council’s approach to the other properties on the development would also be reviewed.
  10. In August, having received a copy of the Building Control inspections he had requested, Mr X wrote to Officer Q about his growing concerns regarding the poor state generally of the Building Control service and how the Council had not been complying with the published Building Control Performance Standards regarding the number and frequency of inspections, recording practices, risk assessments and the enforcement of building regulations.
  11. In the meantime, the Council appointed Mr T to act as the independent surveyor and he carried out a site inspection and met Mr X. In September Officer Q wrote to the developers setting out what they needed to do to remedy the defects, including an investigation into the presence of cavity fire stops, and that the Council would consider taking legal action if the work was not done.
  12. Later in September Officer Q also wrote to Mr X. He apologised for the absence of details from the building control records and referred to the number of officers who had been involved at the site, noting that one had since retired and another no longer employed by the Council. Officer Q said the officer involved in issuing the completion certificate for Mr X’s property had said he had noticed the incomplete fire stopping in the loft space and that the developer had said it would be attended to urgently but never was. He agreed the completion certificate should not have been issued, that the Building Control Manager was reviewing matters and he reiterated the Council would be working with Mr X and the developers to remedy any building control defects. He also confirmed the service would be reviewed against the revised 2017 Department for Communities and Local Government Building Control Standards and Guidance, and that this would take place alongside an internal audit which would be presented to Council members and published. He advised that a letter would be sent to all residents about possible construction defects but declined to reimburse Mr X’s costs.
  13. Mr X met with Officer Q and Mr T in October. He then wrote to Officer Q to summarise matters which he considered had still not been satisfactorily addressed, including the action plan for his property and the re-inspection of the other properties on site.
  14. Officer Q responded in November to the points raised by Mr X and explained what action would be taken with regard to his and his neighbour’s property, the neighbour having also complained to the Council. Officer Q said the developers had not asked for the staged inspections as they should have done and as he could not say why there had not been any inspections for about 12 months he directed Mr X to ask the developers. Officer Q confirmed the decision not to reimburse Mr X his costs.
  15. At beginning of January 2018, Mr X escalated his complaint to stage 2 setting out why he was unhappy with Officer Q’s response and asking for action to ensure the building regulation defects be remedied and lessons learnt. A Council Director reviewed the complaint at the end of the month and acknowledged it was clear the service Mr X and his neighbours had initially received fell far below the standards residents were entitled to expect and that the Council should provide. The Council apologised again but said it was satisfied the situation in Mr X’s case arose because of an error by one officer in accepting a “gentleman’s agreement” from the developers to undertake the necessary work which they then did not carry out but that the officer’s reliance on such an undertaking was an error of judgement and not result of malfeasance on his part.
  16. The Director acknowledged it had taken time to resolve outstanding building control issues but that matters were being dealt with and monitored to ensure all defects were remedied. He confirmed he was satisfied the necessary steps had been taken and measures put in place to prevent a repeat of such failings in the future. He concluded that he was satisfied the response to Mr X’s complaint had been appropriate and proportionate and that if he remained dissatisfied he could complain to the Ombudsman.
  17. On 31 January, the Council wrote to all the residents at the development offering to re-inspect their properties. It advised them that if they had any concerns about specific defects to contact the developer in the first instance and that if they needed help identifying any building control defects to contact the Council which would arrange an appointment to inspect their property.
  18. Shortly after Mr X submitted his complaint to the Ombudsman, the Council offered to refund Mr X half the costs he had incurred in seeking professional advice.
  19. In March, following the first inconclusive endoscopic examination in January of Mr X’s property, Mr T undertook a second examination and found that cavity fire wall stops were missing from Mr X’s and his neighbour’s property and thought therefore that they would likely be missing from other properties of the same type on the site too.
  20. In April Mr T told Mr X that while he had been away on holiday cavity fire walls had been installed in his property. In May Mr X received formal notification from the Council that all outstanding building defects to his property had been addressed and he received written notification of this in June. However, Mr X’s enquiries of the construction worker who did work at his property confirmed that in fact the required vertical wall cavity fire stop had not been installed. This was confirmed by Mr T who said that additional checks would be carried out. The Council has confirmed this work will be completed in the presence of Mr X when he is available.

Analysis

  1. Prior to the Ombudsman receiving Mr X’s complaint, the Council had already acknowledged he and his neighbours had received a poor service. It had apologised for this and taken action to address Mr X’s concerns in relation to his own property and it continues to obtain evidence and review the situation with regard to all other properties on the site.
  2. Mr X has been concerned with the view presented by the Council, and confirmed in the Council’s final response to his complaint in January 2018, that the situation arose because of an error of judgement by one officer. However, there has been a wider service failure which the Council has been slow to acknowledge.
  3. It is the case that the onus is on the developer to inform the Council when work has been completed and is ready for inspection. However, there was an apparent lack of an initial risk assessment and agreed list of staged inspections for the development as a whole. Inadequate monitoring by the Council meant inspections were missed, with a gap of nearly 12 months at one point in Mr X’s case, and inadequate and incomplete records were kept.
  4. It was clearly fault for the officer to enter into a “gentleman’s agreement” with the developer for work to be completed on Mr X’s property after the issuing of the completion certificate and this appears to have been the result of a lax and over friendly relationship existing between the developer and those charged with ensuring the development complied with the regulations. This does not appear to have been the one-off error as it was presented to Mr X and I note the Council has been unable to explain how other completion certificates at the same site were issued for “financial year end purposes only”.
  5. Mr X has also been concerned with the Council’s delay in notifying other residents at the development, who, because it is a sheltered housing development, are more vulnerable due to age and infirmity. He has also been critical of the wording of the letter which did not set out a background to the issues involved.
  6. The Council first became aware of Mr X’s concerns at the end of April 2017 but did not send out the letter to residents until 9 months later, and nearly five months after Mr Q had indicated it would. The Council says it took a risk-based approach to gathering technical evidence and assessing risk and that the delay in sending the letter to residents was not unreasonable as it offered them a re-inspection when it became aware of the problem, pointing to the inconclusive findings of the first of Mr T’s endoscopic examinations earlier in January 2018.
  7. However, given the nature of the concerns, particularly around fire safety issues, and the views of Mr T, one would have reasonably expected the Council to have taken action sooner to notify all residents and to have explained clearly what had caused it to write to them. It did not need to wait for ongoing inspections to reveal the existence of particular defects and earlier communication would have helped reassure particularly vulnerable residents sooner. While this delay, and the uncertainty it caused, is noted, it has not caused significant injustice to Mr X nor, as far as I am aware, to any other resident.
  8. There has been delay by the Council in completing the works required at Mr X’s property. It incorrectly confirmed to him that all the work had been completed when this was not the case and it appears Mr X’s own enquiries were necessary to establish that this was the case. The Council has now confirmed the additional work will be done and that Mr X will receive written notification on completion.
  9. Following the Building Control Service issues Mr X’s complaint revealed, the Council did respond by undertaking significant reviews and audits. Following its audit against the revised DCLG Building Control Standards it has now obtained UKAS Accredited ISO 9001 certification. As part of this process it has agreed there will be three audits a year for quality assurance purposes.
  10. Mr X paid £1,100 to the surveyors he instructed and the Council reimbursed half this cost. It paid half because it felt it was Mr X’s decision to appoint a professional adviser rather than relying on the Council to identify the outstanding building regulation defects, which Mr T did as part of its investigation into Mr X’s complaint. While the Council accepted that if it had been more pro-active in relation to the Building Control issues, Mr X would not have had to have incurred that part of the expenditure, it took into account that the report also identified a significant number of non-building control defects. Its approach here does not appear to me to have been unreasonable and is in keeping with what the Ombudsman might have proposed had the offer not already been made.

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Agreed action

  1. While the Council had already taken the action noted above, it has agreed to my proposal that it pay Mr X £250 in recognition of his time and trouble in pursuing matters. This payment should be made within the next four weeks and the outstanding work completed within this timescale too.

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Final decision

  1. There was fault by the Council which caused Mr X injustice. The Council had apologised, part refunded professional costs incurred by Mr X and carried out a full review of its Building Control Service. In addition to this action it has agreed to my proposal to pay Mr X £250 in recognition of his time and trouble in pursuing matters and to complete the outstanding work to his property.

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Investigator's decision on behalf of the Ombudsman

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