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Milton Keynes Council (19 018 291)

Category : Planning > Building control

Decision : Not upheld

Decision date : 24 Mar 2021

The Ombudsman's final decision:

Summary: Ms X says the Council did not properly inspect building works at a neighbouring property before it issued a completion certificate. I have stopped investigating this complaint and do not uphold Ms X’s complaint. The outcome Ms X wants can only be provided by a court and cannot be achieved through an investigation by the Ombudsman.

The complaint

  1. Ms X complains on behalf of her mother. Ms X says the Council did not properly inspect building works at a neighbouring property before it issued a completion certificate.
  2. Ms X’s mother owns a semi-detached house. Her neighbours obtained planning permission for an extension in 2007. However, building works continued for more than 10 years until Ms X’s family complained to the Council and the Council’s building control officers asked the neighbour to complete outstanding work. Ms X says the work is still outstanding as there are rats coming into her mother’s home through a hole in the separating wall in the roof. Ms X stresses the separating wall is a fire stop which is a legal requirement.
  3. Ms X says her mother spent over £4000 in trying to stop rats from going into her home. But she says the hole in the wall cannot be blocked off from her mother’s home and requires action on the neighbour’s side.
  4. Ms X wants the Council to take enforcement action to ensure defective building works at the neighbouring property are put right.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. 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)
  3. 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:
  • it is unlikely we would find fault, or
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or
  • it is unlikely we could add to any previous investigation by the Council, or
  • it is unlikely further investigation will lead to a different outcome, or
  • we cannot achieve the outcome someone wants, or
  • there is another body better placed to consider this complaint, or
  • it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6), as amended)

  1. 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

  1. I examined the complaint and considered information provided by Ms X and the Council. I discussed matters with Ms X by telephone. I sent a draft decision statement to Ms X and the Council and considered the comments of both parties on it.

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What I found

  1. Ms X stresses her complaint is about a lack of enforcement action by the Council to ensure alleged defective works by the neighbour are rectified.
  2. The complaint as described could be investigated by the Ombudsman. However, I do not consider an investigation by the Ombudsman would achieve the outcome Ms X wants. The Ombudsman’s guidance on dealing with building control complaints states:
    • Primary responsibility for building work and compliance with the regulations rests with building owners and builders.
    • When carrying out their building control functions, councils will normally visit at various stages but they are not required to do so and will not be present for the majority of the project. Councils are not expected to act as a site manager or ‘clerk of works’.
    • A council may inspect work or issue a completion certificate, but this is not a guarantee that all works meet with building regulations. A council’s role is to maintain building standards for the public in general, rather than to protect the private interests of individuals.
  3. The Council’s role is to satisfy itself that buildings are safe and compliant with regulations whereas it is the responsibility of the person carrying out building works to ensure the work is to the required standard.
  4. An investigation by the Ombudsman could enquire into the inspection done by building control officers when Ms X complained to them about the building work. However, the Council was not statutorily required to ensure the building works complied with building regulations but to satisfy itself the works complied with the regulations before issuing the completion certificate.
  5. The Council’s building control role is not to protect the interests of private individuals. So, after inspecting the work done by the neighbour, it is unlikely the Council would have insisted the building work rectified the problem faced by Ms X’s mother. Rather, it would issue a completion certificate if reasonably satisfied work was undertaken in compliance with the regulations.
  6. I do not find an enquiry would not achieve the outcome Ms X wants. That outcome can only be achieved by taking legal action against the offending neighbour.
  7. Mrs X’s mother can take legal action against her neighbour. This is because the building works done by her neighbour caused damage to her property. This is normally a matter for private legal action by the property owner against the neighbour.

Final decision

  1. I closed this complaint because an investigation by the Ombudsman cannot achieve the outcome Ms X wants.

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Investigator's decision on behalf of the Ombudsman

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