Summary: The Council was at fault in relation to advice about whether or not Ms A needed to make a full plans application for Building Regulations approval to replace a fire door. It has also acknowledged fault in the way in which officers corresponded with Ms A. But, it has remedied matters appropriately. If necessary, it will waive any application fee that might be payable.

The complaint

1. The complainant, whom I shall refer to as Ms A, complained that the Council acted inconsistently in providing advice about whether Building Control needed to certify a replacement fire door in her flat.
2. Ms A said she felt the Council had prevented her from updating her fire door to a safer more secure one for the benefit of her family, and the building. Officers’ hostility and refusal to answer her questions had caused her anxiety.
3. Ms A wanted the Council to:
• explain the inconsistencies in their advice about the self-certification scheme, and clarify regulatory requirements, and why they gave the advice they did; and
• apologise for causing her inconvenience and distress, and for making her feel undermined and victimised because she had questioned what officers had said and complained about their attitude.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I have considered what Ms A has told me, together with information provided by the Council.
7. I have written to Ms A and the Council with my draft decision and considered their comments.

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What I found

What happened

July - September 2018

8. Late in July 2018, Ms A contacted the Building Control Team. Following a telephone conversation with a building control officer, she sent an email questioning the advice she had received.
9. The officer responded that Ms A would need to make an application unless she used a competent person to carry out and certify the replacement of the fire door. There followed an exchange of emails during early August in which Ms A continued to question the advice the officer gave her in relation to interpreting the Building Regulations. During this exchange, the officer repeated that Ms A could use a self-certification scheme that would mean she would not have to make a full plans application.
10. The Building Control Manager wrote to Ms A in mid-August. He confirmed that the Building Regulations required a full plans application for the replacement of a fire door. Ms A responded questioning what the manager had said. She also made a formal complaint about officers’ lack of professionalism, and their rudeness and hostility because she had raised concerns about their misinterpretation of the regulations.

The Council’s complaint response

11. A complaints officer wrote to Ms A in September 2018, setting out the Council’s complaint response. The officer said:
• Building Control had correctly interpreted the Regulations, and the London Districts Surveyors Association had confirmed this. A replacement fire door needed to possibly comply with guidance in Approved Document Part L and to certainly comply with guidance in Approved Document Part B;
• the Council maintained that an application was required for the proposed replacement of the fire door. It was a legal requirement to ensure the fire door was tested and fitted correctly to ensure the safety of the occupants and others in the building;
• if a resident changed a door without an application, they were contravening the Building Regulations. Ignorance of the law was not an exemption to compliance;
• if Ms A disagreed with Building Control’s interpretation, she could make a request to the Secretary of State for Communities and Local Government for a determination; but
• as a gesture of good will, Building Control would waive the inspection fee, if Ms A wished to progress matters; and
• officers apologised for any trouble or inconvenience Ms A had suffered. They assured her that the Council was taking the necessary steps to avoid a recurrence.

November 2018 - January 2019

12. During late November and early December, Ms A continued to correspond with the complaints officer. The officer repeated that there were no competent person schemes that waived the need for an application. Ms A would still need to provide an initial notice, and details of the door. An inspector would need to make a site visit, and to carry out a final inspection after completion of the work. The officer also repeated that Building Control would not charge Ms A an application fee, and provided contact details for a female surveyor, which Ms A had requested.
13. During further email correspondence, the complaints officer explained:
• she was entitled to apply for an Initial Notice through a private company if she did not want to use Building Control; and
• the procedure for asking for a determination from the Secretary of State if Ms A disagreed with Building Control’s decision that she needed to make an application.
14. Ms A responded early in January. She said:
• Building Control were not clear about the law, or their policies. This had delayed replacement of the door;
• they had not made it clear why changing fire door on like for like basis was a material alteration, when it was not less satisfactory, or why they required an application fee;
• she wanted to see the legal advice that said she was contravening the regulations by changing her door without making an application; and
• Building Control appeared to be changing its advice again, now saying that a self-certification process or competent person scheme did exist and a private company could apply for an Initial Notice.

The Council’s review of its complaint response

15. Consequently, an officer from the Council’s Customer Services Team wrote to Ms A early in February 2019 following a review of the Council’s earlier complaint response. The officer said:
• the Head of Planning and Development had considered matters and concluded that the service area had failed Ms A in the quality of its response. The overall tone of the correspondence was unacceptable and the Council was sorry about this; but
• there were no government self-certification schemes for fire door installation;
• a fire door should be installed or replaced by a company belonging to an installation scheme which could certify that the door was a fire door. But, there was still a requirement for an application to the Building Control Team or an Approved Inspector; but
• the Building Control service was satisfied they had offered her the correct advice, and had no further comment to make; and
• the service had again confirmed that they would waive the application fee.

The Council’s comments

16. The Council said that:
• the London District Surveyors Association and the Local Authority Building Control (LABC) agreed there was a requirement for an application to replace a fire door, (unless the door opens onto an open external walkway);
• the Secretary of State for Communities and Local Government was the only authority empowered to determine the wording of the Building Regulations; and
• the complainant did not necessarily have to have made an application to apply for a determination.

Was there fault and if so, was there injustice requiring a remedy?

17. It is not open to the Ombudsman to interpret the Building Regulations. There is a right to ask the Secretary of State for a determination about this, even prior to making an application for Building Regulations approval. I am satisfied that officers appropriately explained this right to Ms A, and without unreasonable delay. I see no reason why Ms A should not have used this right. So, I cannot comment further on the issue of whether Ms A needed to make a full plan application for the replacement of a fire door.
18. In saying this, I am mindful that at an early stage, officers did refer to a self-certification scheme that would mean Ms A would not need to make a full plans application. So, there has been fault through providing wrong advice either at this stage or later. But, assuming it was this advice that was wrong, and Ms A did need to make an application, the Council has offered to remedy matters by waiving the application fee.
19. The Council has acknowledged shortcomings in the way in which officers dealt with Ms A in terms of customer service. But, it has already apologised unreservedly for this particular fault.

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Decision

20. For the reasons I have explained above, I have completed my investigation. I have found evidence of fault causing injustice, but I consider the Council had already provided a suitable remedy before the complaint was made to the Ombudsman.

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Investigator's decision on behalf of the Ombudsman