Summary: The Council’s contractor made a mistake in assessing building plans but this this did not cause the injustice claimed by Mr X. The courts have also decided councils should not be liable for economic loss as claimed by Mr X.

The complaint

1. Mr X complains about the Council’s failure to notice a fire safety issue affecting his building proposals before accepting plans for the works. The Council then refused to issue a completion certificate for the work. Mr X says he had to carry out further work to meet fire safety, which meant the finished work was not as planned. Mr X says if the Council had correctly noticed the fire safety issue at the plan stage he probably would not have gone ahead with any works and or may have redesigned the proposals. Mr X wants the Council to pay him significant compensation as he has spent over £40,000 on building works that do not meet his family’s plans, needs and aims.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I have:

• considered Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• asked for and considered the Council’s comments on the complaint;
• shared Council information with Mr X; and
• given Mr X and the Council an opportunity to comment on a draft of this statement and considered their responses.

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What I found

6. Most building work needs approval under the Building Regulations (‘the Regulations’). The Regulations set standards for the design and construction of buildings to ensure health and safety for people in and about those buildings. The Government has issued ‘approved documents’ giving examples of how to meet the Regulations but, builders do not have to follow these examples. The primary responsibility for compliance with the Regulations rests with the land owner, the builder and any other agent employed to carry out building works.
7. People may apply to either the local council or an independent building inspector for approval under the Regulations. Applications may be either of ‘full plans’ or (for small building projects) by ‘building notice’. A full plans application includes drawings of the proposed works for approval by the council/approved inspector. A building notice gives a start date for the proposed works but the council/approved inspector do not approve plans for the work. (Here, Mr X’s builder applied to the Council’s contractor.)
8. A council building control officer will visit at various stages of the building work to inspect compliance with the Regulations, for example, before covering up foundations. However, the council officer will not be present for most of the work. The officer does not act as a ‘clerk of works’, that is, s/he is not supervising the work and or ensuring a builder complies with any contract for the works. If building work is not in line with the Regulations, the building owner’s remedy lies with the builder (or the person employed to supervise the works).
9. On a full plans application, the council may issue a ‘completion certificate’ for the works. The council will issue a completion certificate when it has taken ‘all reasonable steps’ to satisfy itself the building works comply with the Regulations. A completion certificate is evidence but not a guarantee the work meets the Regulations.
10. Seven Hertfordshire councils have set up a company, Hertfordshire Building Control Limited (HBCL), to carry out their building control function. North Hertfordshire District Council, is one of the seven councils. HBCL acted for North Hertfordshire District Council, which is ‘the Council’ in this complaint, in providing building control services for Mr X’s building work.

What happened

11. Mr X engaged an agent and builder to carry out works at his home. HBCL received, over the internet, a building notice for ‘a garage conversion and minor works’. HBCL says it responded, accepting the notice and sending its guidance notes about building notice procedures. The guidance notes refer to the applicant’s responsibility to ensure both the builder’s compliance with the Regulations and suitable technical supervision on site. The plan sent with the application showed the layout of the ground floor of Mr X’s home before and after the proposed work. The plan also showed the front, three-storey, elevation of Mr X’s home.
12. HBCL had received other building control applications involving Mr X’s agent, which were usually full plans applications. HBCL says it contacted the agent and was told the application should have been ‘full plans’. HBCL says it agreed to take the application as ‘full plans’. I have seen no evidence HBCL sought added information or an increased fee to support the change to a full plans application and or issued any further acknowledgement/approval for the proposed work.
13. Work started at Mr X’s home and an HBCL officer visited to inspect the excavated foundations of the existing garage. The officer’s notes said: “next visit final”. A few weeks later, a second visit took place to inspect the completed work. A different officer visited Mr X’s home (‘the Officer’). The Officer’s notes listed outstanding work. The notes also said Mr X’s house was three-storey and “open plan layout at ground floor level will prevent escape from the upper levels in the event of fire within the kitchen/living area”. The notes said the Officer discussed possible solutions to the fire issue with the builder. The Officer emailed the builder the next day about the outstanding work and the fire risk issue.
14. A few days later, Mr X spoke to the Officer and then emailed setting out his dissatisfaction that everyone had overlooked his home was three-storeys. Mr X said he would now have to pay extra to put right the plans when HBCL should have noticed the problem at the start. Mr X asked what choices he had to deal with the problem.
15. The Officer responded within two days, apologised and set out three possible ways for the open play layout to meet the Regulations for fire safety. One possibility kept the ‘as built’ open plan layout on the ground floor. The Officer offered to meet with Mr X to talk about the alternatives.
16. Over the next two weeks, the Officer met Mr X and his builder and the builder carried out further work at Mr X’s home. That work included installing a door at ground floor level and a wall alongside the stairs from the ground to the first floor. The Officer inspected Mr X’s home and found two matters needing attention before issue of any completion certificate. About three weeks later, HBCL issued a completion certificate for the work. Meanwhile, Mr X had complained to HBCL.

Mr X’s position

17. Mr X said his garage conversion drawing clearly showed the layout of his home but, HBCL failed to notice it was three-storey’s until building work finished. He then had to pay £3,000 to deal with the fire risk, which extra work sealed off the open plan layout and looked ugly. Mr X said if HBCL had refused to accept his plans at the start, he could have changed the design or decided not to do any work. Mr X said he had spent £40,000 on a building project that he and his family did not like because of incompetence by HBCL.

The Council’s/HBCL’s position

18. HBCL said the courts had confirmed legal responsibility for compliance with the Regulations was with Mr X as owner. It did not have responsibility for the design or building work or a role/duty as ‘clerk of works’ for Mr X’s project. Mr X engaged a professional agent to design a scheme compliant with the Regulations and any economic loss claimed by Mr X was a matter for him and his agent.
19. HBCL said it correctly processed Mr X’s application but accepted its plans assessment mistake and failure to meet acceptable customer standards. However, Mr X applied and paid for a garage conversion but, the proposed work was not a simple garage conversion and needed payment of a significantly higher fee. And, the plans sent with the application were incomplete and did not include floor plans for the first and second floors. It had apologised for its mistake and offered to refund the application fee (offer since withdrawn). It had fulfilled its role, ensuring the owner met his legal responsibilities, by giving guidance on how to make the work compliant before completion.
20. It had told Mr X there was a way for him to keep the open plan area as built and meet the Regulations but, he had not chosen that way forward. Mr X chose an ‘enclosed’ design solution of adding the thickness of a short wall alongside the stairs and a door within circulation space of inadequate width to place furniture. The added works had little impact on the ground floor open plan layout. HBCL had seen no costs for these works but, would expect them to be significantly less than £3,000. And, Mr X would have needed to design, and pay for, works that did comply with the Regulations. It did not therefore consider Mr X had incurred added building costs.
21. HBCL said, following a senior manager case review, it was satisfied what happened was an isolated event. It had sent all officers a reminder about fire safety for 3-storey homes; provided information to the seven councils about what happened; and used the case for internal training.

Is there fault causing injustice

22. This complaint concerns changes made to Mr X’s home, which are not those originally planned and shown in the building notice application. My role is to consider whether fault by HBCL causes Mr X the injustice of living in and having paid for changes to his home that he did not propose.
23. My start point is that Mr X made a building notice application, and paid the fee, for a garage conversion and minor works. I recognise what HBCL say about the works not being a ‘simple garage conversion’. And, as a building notice application, HBCL did not ‘approve’ plans for the proposed works. This is clear in the building notice approval letter issued by HBCL in response to the application. HBCL may have considered they were being helpful in checking the type of application with Mr X’s agent, and later, recording it as a full plans application. And yet, this created procedural inconsistency.
24. However, HBCL have accepted that good customer service ought to have led it to notice that, whatever type of application and or lack of floor plans, Mr X’s proposals were not compliant with the Regulations for a three-storey home. The key difference in this complaint, between Mr X and HBCL, is the result of HBCL’s ‘plan assessment mistake’. Mr X seeks compensation for not having the original design: HBCL does not consider it is liable to pay Mr X compensation.
25. I have no reason to doubt that Mr X may have reviewed the project if HBCL had identified the proposal was not compliant on fire safety grounds for a three-storey home. Mr X therefore lost his opportunity to review his project before work started because of HBCL’s plan assessment mistake. And yet, once HBCL identified the fire safety issue, the information it gave Mr X included an option for keeping his open plan design and meeting the Regulations. So, Mr X could have had the open plan layout he wanted and meet the Regulations. I do not therefore find HBCL’s plan assessment mistake mainly caused Mr X to be living in a home whose ground floor open layout is not as originally proposed.
26. I also considered that Mr X’s claim against HBCL is for alleged economic loss. It is the owner’s responsibility to ensure building work complies with the Regulations. And, if an owner does have the relevant technical expertise, s/he will need to employ a competent person to do so. The courts have decided councils cannot be held liable for economic loss when carrying out their building control functions. It was therefore for Mr X to protect his financial interests rather than rely on HBCL’s building control service. The Ombudsman would not normally ask a council to provide a remedy the courts, largely on public policy grounds, say should not apply. Here, if I had found fault caused Mr X’s claimed financial injustice, there are no exceptional circumstances to lead me to place such financial responsibility on HBCL.

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Final decision

27. I completed my investigation finding fault by the Council/HBCL was not the substantive cause of the injustice experienced by Mr X.

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Investigator's decision on behalf of the Ombudsman