The Ombudsman's final decision:
Summary: Mrs E complained that the Council had deleted building control records in respect of a development her family had built, without notification and she was unable to obtain a completion certificate for the property. We have not found fault with the actions of the Council.
- Mrs E complained that North Hertfordshire District Council (the Council):
- failed to transfer building control records to Hertfordshire Building Control in 2016;
- deleted the records on 26 May 2020 without further communication with the family; and
- delayed in responding to her complaint properly.
The Ombudsman’s role and powers
- 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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)
How I considered this complaint
- I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs E and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- Most building work, requires building regulation approval. The regulations set standards for the design and construction of buildings and also ensure the health and safety of people in and about those buildings. Building regulations approval can be obtained in different ways including a full plans application. This option provides the most thorough checks. The building owner submits plans for approval. Building work is checked on site by an Inspector for compliance with the building regulations. The Council will issue a completion certificate which states the work is compliant with the regulations. The regulations also require a person carrying out building work to give at least five days’ notice of occupation, not more than five days after the work has been completed.
The Council’s retention policy
- This policy requires building control records to be destroyed 15 years after the last recorded action on an application, except where litigation has commenced, or the building is considered significant.
- In 1990 the Council granted planning permission to Mrs E’s grandfather (Mr D) to build a property. In 1991 building control approved the plans and in 1994 he paid a fee of £178.60 for the inspections.
- NHBC (the organisation which provides warranties for new build properties) visited the property between June 1994 and October 2004. Mrs E says her father who worked on the build and other people remember building control inspectors visiting around the same time. A building control surveyor from the Council wrote to Mr D in June 1997 approving an aspect of the building work.
- The building control team wrote to Mr D in January 1999 enquiring as to whether the work was still ongoing as they had not heard from him in some time and were planning to archive the records.
- In February 2003 the Council wrote to Mr D to say the house appeared to be nearing completion but did not have planning permission because a condition of the original planning permission requiring approval of the bricks and roof tiles had not been obtained The Council said it had approved the brick samples in August 1994 but not the roof tiles. It had written again in June 1997 but not received a response, so assumed the development had not gone ahead. The Council said it had recently been alerted to the unauthorised work by a colleague in the building control department who had passed a sample of roof tiles to the planning department for approval, at the request of the builder.
- Mr D applied for planning permission in February 2003 and it was granted later in the year. Mrs E says the last involvement of building control would have been around the end of 2004 beginning of 2005.
Data transfer to new building control service
- In 2016 the Council transferred its building control records to Hertfordshire Building Control Ltd (a joint working arrangement of eight local authority building control services in Hertfordshire - HBC). This was a time-consuming task given the amount of records involved across all the authorities and was done on a phased basis. The Council proposed to transfer all records on building control applications made since 2000. As the Council’s retention policy required records to be deleted after 15 years, it felt that it would neither be cost- or time- effective to transfer any records before this date. HBC accepted this proposal. The Council says it transferred more records than any of the other authorities involved.
- As Mr D made his building control application in 1991 the records were not transferred.
- Once all the authorities had transferred their records and everyone was satisfied that the new system was operational. The Council began to delete the data that had been transferred along with the older records it held, in accordance with its retention policy. This process began in April 2019. By the beginning of June 2019, the data transferred to HBC had been deleted. The Council then moved on to the remaining older records. In February 2020 it checked that data to be deleted was in accordance with its retention policy (ie there was nothing on the records indicating contact with in the last 15 years). Mr D’s application records were deleted on 26 May 2020.
- The Council says, even considering the information provided by Mrs E, the most recent direct contact from building control was January 1999 and the last reference to building control was in the Council ‘s letter from the planning department dated 12 February 2003. Both these documents were more than 15 years old at the date of deletion.
- In June 2020 Mrs E contacted HBC to obtain a completion certificate for the property as the family wished to sell it. HBC said it had only received records relating to applications from 2002 and directed Mrs E back to the Council. HBC said it could provide a comfort letter to confirm that due to the passage of time it would not take enforcement proceedings on the property. After providing further information HBC agreed to carry out the necessary work to provide a completion certificate. Mrs E paid a ‘rejuvenation fee’ of £316.80 in September 2020.
- In October 2020 she complained to the Council about the failure to either transfer the records to HBC or keep them. She thought the Council should have notified her before the records were destroyed.
- The Council replied on 15 October 2020. It said from the warranty provider records and the inspection invoice, the works started in 1994 and the house was ready for plastering in October 2014. So, it estimated that the house was complete in 2014/15. It noted that no one had notified the Council that the house was complete and Mrs E was now requesting a final inspection.
- It went through the information provided by Mrs E and noted that the most recent reference to building control involvement was 2003 more than 15 years ago, so there was no evidence that the Council should have kept the records. Its policy was not to contact individual applicants before deleting records and the property was completed before the data was transferred to HBC. The building control application had been submitted in 1991 and so was not transferred to HBC. It did not uphold her complaint.
- Mrs E complained to the Ombudsman. She said the building had never been completed and was no occupied.
- Mr D applied for building control approval in 1991. The Council and HBC agreed that only records of applications after 2000 would be transferred to HBC. So, I cannot find fault with the Council ‘s decision not to transfer the records relating to Mr D’s application.
- The onus is on the applicant to inform the Council that the building is complete and occupied. Neither Mr D, Mrs E or anyone else in the family notified the Council or requested a completion certificate until October 2020. The lack of a completion certificate prior to that date is not due to fault by the Council.
- The Council’s retention policy requires building control records to be destroyed 15 years after the last recorded action on the application. The Council has provided evidence which shows that prior to deleting the records, they were reviewed in February 2020 to ensure deletion was appropriate and then deleted in batches over the next few months, with Mr D’s records being deleted at the end of that time-frame on 26 May 2020.
- In the absence of any Council records, Mrs E has provided some documents. But of these, the most recent document directly from building control referring to the case is dated 13 January 1999 and the most recent document referring to any building control involvement is 12 February 2003. Both of these dates are more than 15 years before records were deleted in May 2020. On the basis of this information, I cannot safely conclude that the Council was wrong to delete the records when it did.
- Given the number of documents involved (over 250,000) and the time period already allowed (in most cases building work would be completed within 15 years) I would not expect the Council to notify individuals before records are deleted and I cannot find fault with the failure to do so in this case.
- I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mrs E.
Investigator's decision on behalf of the Ombudsman