Summary: Ms X complained that the Council sent her copies of building control site visit notes that were factually incorrect. Ms X says she relied on the notes before seeking legal advice, and this is a cost she might have avoided. Ms X would like the Council to pay her legal costs. The Council accepts the notes are incorrect and it apologised to Ms X, but refused to pay her legal costs. There was fault in the way the Council acted because its site visit notes were incorrect. However, we cannot show the fault caused Ms X to incur legal costs, so we do not recommend a remedy.

The complaint

1. Ms X complained the Council sent her building control records that were factually incorrect. Ms X says she relied on these records before deciding to seek advice from a solicitor about taking legal action against her builder. Ms X now wants the Council to pay the costs for her legal advice.

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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’. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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:

• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or

(Local Government Act 1974, section 24A(6), 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 read the complaint and other documents provided by Ms X and have discussed the complaint with her. I read the Council’s response to the complaint and considered documents from its files, including its correspondence with Ms X.
6. I gave the Council and Ms X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Building control

7. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
8. Building regulations approval can be granted by councils acting as building control authorities, or by independent ‘approved’ inspectors. Councils employ building control officers (BCOs) to carry out this work.
9. There are two ways a building owner can get building regulations approval. These are:
• Full plans application. The owner or their agent submits plans. The plans are checked for compliance with building regulations.
• Building notice application. The owner or their agent informs the council or approved inspector of their intention to begin building work. The BCO/approved inspector will visit the site at various stages of the work to check compliance with building regulations.
10. There have been court challenges where owners of buildings have sought to hold council building control authorities liable for defects in building work they have inspected. The courts have decided that council building control authorities are not liable to ensure compliance with building regulations – the duty to comply with regulations lies with the building owner, who may be able to take legal action for the consequences of poor/non-compliant work against their contractor, architect or builder.

What happened

11. Several years ago, Ms X had planning and building control approval to build an extension to her home. The plans that were approved included trench foundations infilled with concrete to be laid under external and internal walls.
12. A few years after the extension was complete, cracks began to appear on its walls. Ms X sought advice from the architect who had designed the extension, the project manager she had employed to oversee works and the builder.
13. Ms X was advised to contact the Council to get copies of its building control officer’s (BCO) notes. The Council provided a copy of its BCO’s notes, which said the builder had been advised to construct a concrete raft foundation instead of standard trench foundations.
14. Ms X says that after reading the notes, she immediately spoke to the builder, who denied the BCO had advised him to build a concrete raft foundation. Ms X says she had previously had a dispute with the builder and this along with the contents of the BCO’s note led her to conclude the builder was at fault.
15. The next day, Ms X sought advice from a solicitor who said he might assist her, but that she needed to pay money in advance for his services. Ms X paid the money to the solicitor and then continued discussions with the other parties. Ms X says she acted quickly because her annual insurance term was about to end.
16. A few months later there was an on-site meeting attended by all parties. Ms X had taken photos of different stages of the extension’s construction, which were dated. There were photos of the foundations, which showed:
• there was no concrete raft foundation;
• the builder had not followed the original plans as there were not trench foundations under internal walls, which were built on concrete slabs laid on the ground.
17. The builder claimed the Council had instructed him to build the internal walls on slabs, but the Council denied this. The Council denied advising a concrete raft foundation and said that its notes were incorrect and probably related to an entirely different site. It pointed out that the dates within the notes did not tally with the dates on Ms X’s photos, which showed when construction began. The Council said this proved its notes were incorrect.
18. The project manager employed a structural engineer. The engineer said there would have been no need for a concrete raft foundation and the cracks were probably caused by two factors. The first was a failure to follow the original plans and support all walls by trench foundations.
19. The second was a failure to properly prepare the ground before the build. The underlying soil is clay and prone to expansion and contraction depending on how much water it contains. To avoid excessive movement, an amount of topsoil should have been removed and replaced by more stable material, which should then have been compacted before floor slabs were laid.
20. Ms X said that, after considering the circumstances, including the opinions of her advisors and the extent to which her legal costs would be covered by insurance, she asked the solicitor to close his file. Ms X said that if she continued legal action, she would represent herself.
21. Ms X complained to the Council. It accepted it was at fault and apologised to Ms X. However, it did not agree it should be held liable for her legal costs.

My findings

22. We are not an appeal body. Our role is to review the process by which the Council’s decisions are made. Where we find fault in the decision-making process, we decide whether it caused an injustice to the complainant. To do this, we need evidence to show that, but for the fault, the outcome would have been different.
23. Our decisions are made on the civil burden of proof, which is sometimes described as the balance of probabilities. It means we need evidence that shows that any claimed injustice was more likely than not to result from the fault we find.
24. The Council’s building control visit notes, that were sent to Ms X, were incorrect. They did not match the plans, fit with the recollections of the officers and builder or the dates on Ms X’s photos. This is fault.
25. Ms X says that because of the fault, she would not have instructed the solicitor and incurred costs. To recommend that the Council now pays these costs, I need evidence to show that it is more likely than not that, if the fault had not occurred, Ms X would not have instructed the solicitor. I do not consider I can make this recommendation, for the following reasons.
26. Ms X went straight to the solicitor without checking with all other parties why the BCO appeared to be making a different recommendation to the approved plan. Once the architect, project manager, the structural engineer and the Council’s BCOs had an opportunity to consider the evidence and what had happened, the circumstances changed.
27. Legal action always involves risk and recovering costs is never certain. Ms X says she had reasons, partly connected to her house insurance, why she acted so quickly, but I cannot say it was necessary for her to do so. We only rarely recommend councils pay professional fees and would only do so in circumstances where there was little choice other than to incur these costs. While I understand her reasons for seeking legal advice when she did, this was her choice and she might have acted differently and with less urgency. Ms X’s chosen path, while not unreasonable, was nevertheless a choice she made when other choices were available.
28. It is worth noting that requiring details of a complaint and a response to the complaint is the first part of our investigations. For most of our investigations, this basic information is considered essential before deciding whether to spend public money. Ms X might have made similar checks before incurring costs.
29. Ms X asked the Council for the BCO’s notes but she did not explain how she might use or rely on them. If the Council had notice of her intentions, it would have had the opportunity to check its records or to send the notes with a disclaimer to limit its liability.
30. The circumstances changed, but the cracks in the building remained. Even if the Council had acted without fault or if it had corrected its records before Ms X instructed her action, she may still have sought legal advice on what to do next. Because of this, the costs she incurred after reading the BCO’s site visit notes might have been incurred later.
31. For these reasons, there was fault in the way the Council acted, but I cannot say Ms X’s legal costs were caused by the fault.

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Final decision

32. There was fault in the way the Council acted, because the information it sent to Ms X was incorrect. I have not recommended a remedy because I have seen no evidence to show the fault caused the injustice that is claimed. For these reasons, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman