London Borough of Bexley (18 015 206)

Category : Planning > Building control

Decision : Upheld

Decision date : 28 Jun 2019

The Ombudsman's final decision:

Summary: The Ombudsman found fault on Mr P’s complaint against the Council about the actions of its building control team. The Council failed to keep proper contact records, failed to identify a failure to comply with Building Regulations during an inspection, and took 4 months to correct this failure. The agreed action remedies the avoidable injustice caused.

The complaint

  1. Mr P complains the Council’s building control team failed to carry out its role properly as it missed obvious and serious breaches of the Building Regulations during an inspection; as a result, works remain outstanding, he has suffered a great deal of stress, and he is without a completion certificate.

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The Ombudsman’s role and powers

  1. 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)
  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)

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How I considered this complaint

  1. I considered all the information Mr P sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I sent copies of my draft decision to Mr P and the Council. I considered their responses.

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What I found

  1. Following planning consent for a 2-storey extension, Mr P entered into a contract with X Ltd for it to carry out the building work. When instructed, building control officers visit to ensure building work complies with the Building Regulations (the Regulations).
  2. In August 2017, a building control officer visited to carry out an inspection. The report of the visit records the need for an extractor to the ensuite bathrooms and for smoke/heat detectors.
  3. In December, the officer visited again. During this visit, Mr P claims the officer missed serious defects in the work done. Mr P says the officer told him the works were complete. The report of this visit records the need for smoke detector heads in the lounge and first floor landing, and that, ‘All other works complete’. It also noted. ‘Await Part P’.
  4. Around this time, X Ltd left the site. This was because of Mr P’s unhappiness with their quality of work. He refused to pay the final instalment to them of £20,000.
  5. In April 2018, the officer wrote to Mr P saying the half hour fire separation was missing between the kitchen and the open staircase. The letter said works were not complete. The Council did not issue a completion certificate.
  6. It also confirmed electrical works were complete and notified through the Competent Person’s Scheme. The government introduced this scheme to allow individuals and businesses to self-certify their work complies with the Regulations instead of using an approved inspector such as a building control officer, for example. This includes certain electrical works and gas installation works.
  7. The letter explained the Council received no information about gas works. To issue a completion certificate, the officer would need to visit again. It would also need notification about the gas works done.
  8. Later that month, the officer amended the inspection report. It now recorded the need for the fire separation at ground floor before the Council could issue a completion certificate. It also referred to NAPIT (National Association for Professional Inspectors and Testers). This is a government approved accredited membership scheme operator in the building services sector. NAPIT is the government approved register holder for registered domestic electrical installers. (Part P of the Regulations)
  9. The words ‘gas safe’ were also added to the form.
  10. When responding to Mr P’s complaint, the officer who visited said he could not recall the visit but, on reviewing the file found works were, ‘omitted in error’. In response to my enquiries, the officer confirmed failing to notice the omission of the fire separation which would separate the kitchen from the staircase as shown on the conditionally approved drawing. The officer said he updated the builder about the outstanding works but could not provide written evidence of the call.
  11. Mr P wonders why the officer realised these works were outstanding 4 months after last visiting him. He is unhappy he paid building control £1,000 for its services.
  12. In December, Mr P hired a surveyor to look at the works carried out by X Ltd. The report noted it was clear some of the works did not comply with the Regulations. This was because of the missing half hour fire resistance between habitable rooms, no extraction vent to 2 bathrooms, and the design of the staircase to the loft.
  13. X Ltd issued court proceedings against Mr P for the final instalment who counter claimed for the poor-quality work. X Ltd said the Council signed off the works and Mr P breached their contract by failing to make the final payment.
  14. Mr P argues X Ltd carried out the following inadequate works which the officer failed to identify:
  • The fire separation;
  • Incorrect electrical works as the smoke detectors are not linked, some had no covers, and many sockets were not attached to the walls;
  • Incorrect pipe size for the central heating and the wrong size pump for it;
  • Moving the gas boiler and meter; and
  • Incorrect fire doors fitted and extractors not fitted.
  1. He complained to the Trading Standards about the quality of the works. Trading Standards replied saying it no longer gets involved in disputes between consumers and traders. In response to my enquiries, the Council explained Trading Standards do not get involved in civil cases unless there are many complaints about the trader. Mr P’s case is a civil matter between him, as a member of the public, and his builder. It has not received any similar complaints about X Ltd. It is aware of court proceedings involving the 2 parties.
  2. Mr P says he contacted NAPIT and Gas Safe. He discovered X Ltd is not a member of either. Following an inspection by a Gas Safe engineer, he was told the gas work done at his property may not have been done by a Gas Safe registered business. To fix any unsafe works, it advised him to contact a local Gas Safe registered business. This was because the inspection found gas safety defects with the boiler and gas pipework to the meter.

Analysis

  1. All building work carried out should meet the Regulations and current building codes. These set out standards for the design and construction of buildings to ensure the health and safety of people in and around them. Building control services ensures building work complies with the Regulations.
  2. The responsibility for complying with the Regulations rests with those carrying out the building work.
  3. As building works begin, the building control inspector will visit at various key stages to check on works. These include: the floor and ceiling joists; roof timber/trusses; fire safety and glazing regulations; and staircases. After taking all ‘reasonable steps’ to satisfy itself that the Regulations were met, the Council can then issue a completion certificate. (Regulation 17) This is not a guarantee of works meeting the required standard.
  4. Disputes about the quality of work are not for the Ombudsman to decide. It was the responsibility of Mr P to ensure the works met the required quality. Any dispute about quality is a contractual matter for Mr P. Building control officers do not supervise the works generally. They do not act in the capacity of a clerk of works, for example.
  5. As the Competent Person’s Scheme allows for self-certification, the electrical and gas works are not checked by the Council. Self-certification means members of these schemes self-certify their work complies with the Regulations. The Council receives notification of the self-certification.
  6. To self-certify, they must be a member of an authorised scheme, or Competent Person’s Scheme. Each scheme provider is responsible for ensuring its members are competent to do the work they do, which means works done are done safely and meet the requirements of the Regulations.
  7. Whatever concerns Mr P has about the self-certification by X Ltd for the electrical and gas works, he needs to address them to NAPIT and Gas Safe.
  8. I found the following fault on Mr P’s complaint:
      1. As accepted by the Council, during the December 2017 visit, there was a failure to identify all the works outstanding which would prevent the Council from issuing a completion certificate. I consider this was fault.
      2. These failures were not, for whatever reason, identified until 4 months later. I consider this delay is fault.
      3. Although the Council says X Ltd was told about the outstanding works, there is no evidence of this. This is also fault.
  9. I am satisfied this caused avoidable injustice to Mr P.
  10. When considering the injustice caused, I also took account of the fact that:
  • X Ltd were no longer on site by the end of December 2017;
  • The Council has yet to issue a completion certificate because of the outstanding works; and
  • Despite the Council telling him in April 2018 about the outstanding works needed before it could issue a completion certificate, Mr P has yet to arrange them.

Agreed action

  1. I considered our guidance on remedies. I also took account of the apology the Council already gave Mr P for the building control team’s service failures.
  2. The Council will, within 4 weeks of the final decision on this complaint, carry out the following:
      1. Remind all building control officers about the need to make and retain key contact records;
      2. Remind all building control officers of the need to carry out proper inspections and promptly communicate outstanding works needed to the homeowner/applicant;
      3. Pay Mr P £200 for the distress the fault caused (uncertainty about whether there are other works outstanding: (see paragraph 16); raised expectations during the 4 month period of delay as Mr P believed there were no further works outstanding other than that noted during the visit; the lost opportunity to act to address the outstanding works 4 months earlier; and the stress, inconvenience and frustration these failings caused him); and
      4. Arrange for an officer to visit to clarify what works are needed for the Council to issue a completion certificate and specifically whether the loft staircase complies with the Regulations (see paragraph 16).

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Final decision

  1. The Ombudsman found fault on Mr P’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman

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