Decision : Closed after initial enquiries
Decision date : 15 Mar 2019
The Ombudsman's final decision:
Summary: We will not investigate this complaint that Building Control Officers failed to spot defects with a new drain Mr X had installed at his home. It is unlikely we could achieve the outcome Mr X wants. The County Council’s Trading Standards team may consider a complaint about a breach of the Trade Descriptions Act 1968. And, if Mr X thinks the Council is in breach of the Consumer Rights Act 2015, he may go to court.
- The complainant, who I have called Mr X, complained that South Norfolk District Council’s Building Control Officers failed to spot that a new drain he had installed did not have the right fall. He said he now gets smells from the drain in his bathroom.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- we cannot achieve the outcome someone wants, or
- there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6), as amended)
- The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
- I considered the information provided by Mr X, including the Council’s final response to his complaint. I considered Mr X’s response to a draft of this decision.
What I found
- Most building work, including the installation of new drains, requires Building Regulations approval.
- Primary responsibility for ensuring building work meets the required standards lies with those who commission the work and those who do it. Building Control Officers visit at various stages but they are not present for the great majority of the project and they do not act as a clerk of works.
- The case of Murphy v Brentwood District Council  was an appeal to the House of Lords. It established that a council is not liable for the costs of putting right defective building work resulting from its failure to ensure compliance with building regulations.
- The Building Control section of the Council’s website contains the following statements:
“At CNC, we understand how stressful and worrying undertaking a large project can be. That’s why we treat your project as OUR project, and your house as OUR house. We will be with you every step of the way from when you first decide to carry out the work through to its completion and the production of a completion certificate.
We’ll make sure that all the works are carried out and adhere to the building regulations so that you can be sure you house is safe”.
- Norfolk County Council’s Trading Standards Team may consider complaints about breaches of the Trade Descriptions Act 1968. The Consumer Rights Act 2015 enables a person to go to court if they are dissatisfied with the service provided by a business.
- Mr X had a new drain installed at his home. He later started getting smells in his bathroom. He investigated the cause of the smell and had the drain inspected. The inspection suggested the drain did not have the correct fall and standing water in the drain was the cause of the smell in his bathroom.
- Mr X complained to the Council as he thought its Building Control Officers should have realised the new drain did not have the correct fall. It denied liability for the problems Mr X was experiencing and suggested other causes of the smell in his bathroom.
- Mr X referred to the statements on the Council’s website regarding its Building Control service. He believes the Council is in breach of both the Trade Descriptions Act 1968 and the Consumer Rights Act 2015. He maintains that the Council is liable for the problems with his drain, and that it should pay for remedial works and refund his Building Control fee.
- We will not investigate this complaint.
- Mr X believes the Council’s Building Control Officers should have spotted that his new drain did not have the correct fall. The Council does not accept liability for the problems Mr X is experiencing. The courts have established that councils are not liable for the costs of putting right defective building work when they fail to properly inspect works to ensure compliance with Building Regulations. Because of this ruling, the Council would not be liable for the cost of any remedial works even if it were at fault in the way Mr X alleges. We cannot, therefore, achieve the outcome Mr X would like.
- However, Mr X believes the Council is in breach of both the Trade Descriptions Act 1968 and the Consumer Rights Act 2015 and is, therefore, liable for the problems with his drain. The County Council’s Trading Standards team is better placed to deal with a complaint about an alleged breach of the 1968 Act. And it would be reasonable for Mr X to go to court if he thinks the Council has breached the 2015 Act.
Investigator's decision on behalf of the Ombudsman