Summary: Mr X complained the Council failed to properly check his property complied with Building Regulations. The Council was not at fault.

The complaint

1. Mr X complained the Council failed to:
1. properly check if his property complied with Building Regulations; and
2. respond to his contact in a timely way.
2. Mr X said because of the Council’s failure, his property is unsafe, its value has reduced and he has had to pay to remedy some of the works. He said the communication issues caused him stress and frustration.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
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. Mr X complained about matters starting in May 2017. I have exercised discretion to investigate Mr X’s complaint because he has been in ongoing discussion with the organisation acting on behalf of the Council about the issues.

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How I considered this complaint

6. I have considered:
• all the information Mr X provided and discussed the complaint with him;
• the Council’s comments about the complaint and the supporting documents it provided; and
• relevant law and guidance.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation and guidance

8. Most building work requires Building Regulation approval. The Regulations set requirements and guidance for the design and construction of buildings and ensure the health and safety of people in and about those buildings. 
9. Building Regulations approval can be obtained by:
• Full plans application. This option provides the most thorough checks. The building owner or their agent submits plans for approval. Building work is checked on site by an Inspector for compliance with the Regulations. The Council will issue a completion certificate within 8 weeks which states the work is compliant with the Regulations. If the work is not compliant, the Council will issue advice on how it can be made so.
• Regularisation application. Compliance with Regulations can be certified after the work is done, but only by a Council Building Control service.
10. 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 builder and building owner, who may be able to take legal action for the consequences of poor/non-compliant work against their contractor, architect or builder.
11. Councils should not be seen as a ‘safety net’ for when things go wrong, nor are they liable for poor or unlawful building work. Council compliance certificates do not guarantee works meet with the Regulations. Their role is to maintain building safety for the public in general, not to protect the private interests of individuals.
12. There are time limits on when a council may take action if it discovers work which has not been carried out in accordance with the Regulations. Work becomes immune from prosecution two years after it has been completed. The two-year limit is subject to a requirement that any prosecution must be brought within six months of the date on which a council has sufficient evidence to justify bringing a prosecution. Councils can only issue enforcement notices within 12 months of the work being completed.
13. Councils can employ external consultants to carry out their functions. When this happens, the consultants are considered officers of the Council in so far as their work relates to the Council’s powers and functions.
14. When individuals buy properties, they are expected to make checks necessary to satisfy themselves. Individual buyers can seek advice from professional surveyors and employ their services under a contract, which should be carried out with reasonable care and skill. Guidance from the Royal Institute of Chartered Surveyors shows that visual checks for breaches of building regulations are included in building surveys.

What happened

Building inspections

15. The Council (Fenland DC) delegates its building control (BC) functions to South Norfolk council. South Norfolk council staff were acting as officers of the Council.
16. Mr X bought a property at the end of May 2017. Before he bought the property, a BC officer caried out an inspection to confirm it complied with the Regulations. The BC service approved the works and issued a completion certificate.
17. After Mr X moved into the property, he had concerns about elements of the garage. Mr X spoke to his builders about the issues until early 2019, when he contacted the BC service. A BC officer carried out a second inspection in April 2019. They found several issues with the work in the garage and surrounding area, including but not limited to:
• the space saver staircase was not suitable now that it led to a habitable space above the garage;
• issues with a toilet fitted in the space above the garage;
• non-fire safe doors between the garage and the space above it and between the garage and the main house.
18. The BC service explained it could take action against Mr X but would prefer to begin the regularisation process. It asked Mr X to complete a regularisation application.
19. Mr X did not agree to complete the application because he felt he was not responsible for remedying the non-compliant works. He said the builder carried out the works before he bought the house, and the BC officer signed it off. The builder disputes this and says Mr X made the changes after he bought the property.
20. Mr X has sent me photographs dated before the first inspection. One shows the space saver staircase and another the space above the garage before the walls were plastered and floor fitted. The space above the garage had not been converted to a habitable space in the photograph.
21. The works would only have been considered non-compliant when it was clear the space above the garage was intended to be habitable. Habitable rooms are spaces for domestic use. This does not include storage spaces and WC’s.
22. The BC service has sent me a copy of its notes from the first inspection. The notes do not record whether the officer assessed the garage or its surrounding area. In response to my enquiries, the BC officer said they could not remember the inspection. The BC service said it was confident if the officer saw inside the garage, they would have noticed and recorded any obviously non-compliant works, if they were present at the time.
23. The BC service later agreed to carry out a third inspection. Mr X says it missed key defects in all three inspections which affected his safety.
24. In March 2020, Mr X complained to the BC service, which responded in late April to say it:
• recognised there was a dispute about whether the work to the garage was carried out before or after the first inspection, and by whom;
• were satisfied the inspections were adequate; and
• encouraged Mr X to engage with the regularisation process. It confirmed he was liable for any non-compliance with the Regulations.
25. In December 2020, Mr X sent a regularisation application. In response, in January 2021, the BC service issued a report detailing what Mr X needed to do to make the work compliant with Regulations.

Communication

26. In his complaint to the BC service, Mr X also said he was unhappy about delays in its response time and that he regularly had to chase it for replies. The BC service replied to say it reviewed the 65 contacts in the period between January 2019 to April 2020. It said it was satisfied overall with how it responded to Mr X but accepted it had taken too long on some occasions. This included when it had to seek legal advice.
27. Mr X has continued to communicate with the BC service about the works since his initial complaint. In August to October 2021, his solicitor contacted the service four times. It did not respond until late October. In its response to my enquiries, it accepted there had been some delays in responding to Mr X. It said COVID-19 affected its ability to reply promptly. It apologised for the delay.

Findings

Building inspections

28. The Ombudsman holds councils responsible for the actions of consultants and others acting as officers on their behalf.
29. Mr X says the BC service failed to identify breaches in the Regulations before issuing a completion certificate and therefore put him at risk of harm. Mr X’s photographs do not show the non-complaint works were in place before the BC service carried out its first inspection and issued the completion certificate. In addition, I cannot confirm the BC officer accessed the garage during the inspection. Therefore, I cannot say it was at fault for failing to identify the issues.
30. Inspections cannot be expected to determine that every element of a build is compliant with the Regulations or that a property is safe for use. A certain amount of trust is necessary, as materials and structures will often be hidden or inaccessible. The purpose of Building Regulations is to ensure building works are not likely to affect public safety, not to protect the private interests of individuals. The purpose of the inspection is for the BC service to satisfy itself that the building is compliant and that it does not need to take further action to ensure compliance and safety. The process involves professional judgement and the exercise of discretion.
31. When individuals enter into contracts to buy property, legal obligations are created. Individuals are expected to carry out their own checks to satisfy themselves with their purchase. If Mr X wanted to ensure that the works were compliant with Regulations, he could have commissioned an appropriate survey before he bought the property.
32. Mr X is unhappy the BC service did not take action against the builders to compel them to remedy the works. Once Mr X bought the property, he also became liable as landowner for any breaches in the Regulations and responsible for remedying them. When Mr X contacted the BC service, it properly considered what action was appropriate and decided not to take enforcement action. It was not at fault in how it decided to resolve the issues with Mr X’s property.
33. We do not expect councils to become liable for the costs of rectifying non-compliant building works. Mr X is aware that financial liability for his costs is a matter for the courts. It is open to him to take court action to recover the costs in making the property compliant with building regulations.

Communication

34. The BC service has accepted it occasionally failed to respond to Mr X in a reasonable time. I do not consider the delay sufficient to make a finding of fault. In any event, the service apologised for the delays. This would suitably remedy any injustice Mr X experienced.

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Final decision

35. I have completed my investigation. I have not found evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman