Summary: Mr X complains about the actions of the Council’s building control officers in issuing a completion certificate for his house before he bought it. He says recently events caused him to conclude the drainage system did not comply with building regulations. The Ombudsman decided to discontinue its investigation into this matter. We have a presumption against investigating building control complaints and there is no good reason to depart from that in this case.

The complaint

1. Mr X complains about the actions of the Council’s building control officers. He says the Council issued a completion certificate for his house several years before he bought it but did not notice the drainage system was inadequate. He says this first came to light in 2018. Mr X says he is facing large costs to fix the problem and cannot sell his house in the current situation.

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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. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B

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How I considered this complaint

4. I spoke with Mr X about his complaint. I wrote to the Council to ask for copies of Mr X’s complaint correspondence and read the documents it sent.
5. I shared my draft decision with Mr X and the Council and I invited them to comment on it.

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What I found

6. A completion certificate issued by a local authority building control department provides formal evidence that building works have approval. This means in so far as it is reasonable to determine, any works have been carried out in accordance with the building regulations.
7. Mr X lives in a house which he bought over 10 years ago. In 2018, a blockage in Mr X’s septic tank caused sewage to flood into a neighbour’s property. Mr X says he commissioned a survey of the drainage system and spoke with another neighbour who advised him too. He says the surveyor discovered the drainage system put in place during the original building works directed all surface water running from the buildings and paved areas around them into his septic tank.
8. Mr X believes the cost of fixing the problem with the drainage system would be many thousands of pounds.
9. Mr X complained to the Council as he believes its building control department was responsible for approving the drainage system and should have known it was not compliant with the law. However, he accepts in his correspondence responsibility also lies with the builder who originally carried out the work.
10. Mr X says he cannot sell his house while the problem remains unresolved. The Council did not uphold Mr X’s complaint and says it considers the completion certificate is still valid.

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Analysis

11. The Ombudsman has a presumption against investigating complaints about building control matters. This is because the main responsibility for building work lies with those who commission it and those who do the work.
12. While council building control officers visit at various stages, there is no need for them to do so. They will not be present for most of the work and do not act as a ‘clerk of works’. Any completion certificate issued is not an absolute guarantee that all the works meet the standard of the building regulations.
13. While it is true Mr X did not commission the building work in this case, I cannot see a good reason why I should override our presumption against investigating. The Council stands by its completion certificate. Mr X does not claim the Council misled him when he bought his property. And as the Council did not carry out the building work it is not directly responsible for the design or construction.
14. I have decided to discontinue this investigation without making a finding about fault.
15. I have also taken into account that even if I did investigate and find fault with the Council’s inspections, the Ombudsman would not be able to provide the remedy Mr X wants. The courts have said (Murphy v Brentwood District Council (1990)) a council cannot be held responsible for economic loss for the cost of fixing a defect caused by its failure to ensure that a building complied with the building regulations.
16. Only in exceptional circumstances would the Ombudsman seek to impose an obligation on councils where the courts have said, largely on grounds of public policy, there should be no liability in law. Any remedy therefore would not achieve the result Mr X wants.

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Final decision

17. I have discontinued my investigation of this complaint without making a finding about fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman