Summary: The Ombudsman will not investigate Ms X’s complaint about the Council’s Building Control officer signing off the roof of her house extension. The roof was completed 10 years ago. Ms X has been aware of a problem with the roof for over 12 months, so the complaint is late. The primary responsibility for building work rests with those who commission it and those who do the work, not with the Council. There are no good reasons for the Ombudsman to investigate the complaint now.

The complaint

1. Ms X complains the Council’s Building Control officer failed to notice the roof of her house extension was tiled incorrectly about 10 years ago. The builder placed the tiles in line, rather than off-set.
2. As a result, Ms X says the roof is leaking, causing damp in the property. She says she complained to the Council a few years ago but they did not take action. Ms X says she cannot afford to re‑tile the roof. She wants the matter investigated, compensation from the Council, and the Council to repair her roof.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. As part of my assessment I have:
• considered the complaint and the documents provided by Ms X;
• issued a draft decision, inviting Ms X to reply.

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What I found

7. Section 26B of the Local Government Act 1974 (‘the 1974 Act’) says a complaint must be made to the Ombudsman within 12 months of the complainant becoming aware of the matter. If the complaint is received after 12 months, then it is late.
8. Ms X’s complaint is late. I say this because she reports the roof was fitted about 10 years ago. Ms X also says she complained to the Council about the problems she was having with the roof ‘a few years ago’. The evidence I have seen shows Ms X has been aware of the roof problem for much longer than 12 months, so the complaint is late.
9. The Ombudsman may exercise discretion to investigate a late complaint. But I do not consider I should use that discretion here. I say this because the Ombudsman cannot achieve the outcomes Ms X is seeking.
10. The primary responsibility for building work does not rest with the Council; it rests with those who commission the work, and those who do the work. When carrying out their functions under the Building Regulations, councils will visit developments at various stages. But they will be not be present for most of the project and they do not act as a ‘clerk of works’. Councils must issue a completion certificate on request and when it is satisfied it has taken ‘all reasonable steps’ to make sure the regulations are met. This certificate is not a guarantee that all works are completed to the necessary standard.
11. The courts have decided that someone cannot hold a council responsible for economic loss for the cost of correcting a defect that resulted from its failure to make sure a building complied with Building Regulations (Murphy v Brentwood District Council (1990)).
12. It is the Ombudsman’s position that only in exceptional circumstances should he look to impose an obligation on councils where the courts have held there should be no liability in law. There are no exceptional circumstances which would lead me to apply such obligations here. Therefore, even if we investigated this complaint, we would not achieve any worthwhile outcome for Ms X.
13. For the reasons explained above, I do not intend to exercise my discretion and investigate this late complaint. This is a contractual matter and Ms X may wish to seek compensation from the builder she employed to do the building work.

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Final decision

14. The Ombudsman should not investigate this complaint. This is because the complaint is late, and there are no good reasons to investigate it now because the Ombudsman cannot achieve the outcome Ms X is seeking.

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Investigator's decision on behalf of the Ombudsman