The Ombudsman's final decision:
Summary: Mr D complains on behalf of Mr B about the Council’s decision not to accept Mr B’s sound test report. We do not find fault with the Council.
- Mr D complains on behalf of Mr B. He complains about the Councils decision not to accept sound insulation test evidence Mr B completed. He says the Council was wrong to reject the evidence on the basis he is not accredited/ registered with certain schemes.
- He says the Council’s decision meant Mr B lost out on business. He also says it could cause reputational damage which could mean both Mr B and Mr D lose other clients.
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)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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 spoke to Mr D and Mr B and considered the information they provided with the complaint. I made enquiries with the Council and considered its response with the relevant law and guidance.
- Mr B, Mr D and the Council had the opportunity to comment on my draft decision. I carefully considered all the comments I received.
What I found
Law and guidance
- Part E in schedule one of the Building Regulations 2000 introduced regulations 20A and 12A. These relate to pre-completion testing for sound insulation as a means of demonstrating compliance.
- The Department for Communities and Local Government issued an Approved Document E frequently asked questions document for organisations that carry out pre-completion testing.
- The United Kingdom Accreditation Service (UKAS) is a national accreditation body to assess the competence of organisations that provide certification, testing, inspection and calibration service.
- The Acoustic and Noise Consultants (ANC) registration scheme covers members who offer pre-completion sound insulation testing in accordance with Approved Document E.
- It says organisations that carry out pre-completion testing should “preferably have UKAS accreditation” and it also “regards members of the ANC registration scheme as suitably qualified”.
- It says when pre-completion testing was introduced in 2003 there were not enough UKAS/ANC test organisations to undertake work. But there are now over 50 UKAS/ANC organisations. It recommends those organisations should be used unless no such organisation is available.
- Mr B carries out sound insulation testing. He is registered with an independent certification scheme. He is not registered or accredited with UKAS or ANC.
- Mr D is the owner of the independent certification scheme Mr B is registered with. His scheme is not registered or accredited with UKAS or ANC.
- In June 2020 Mr B completed sound insulation testing at an address in the Council’s area. The Council rejected the test evidence Mr B provided because he was not UKAS or ANC accredited.
- Mr D complained to the Council on behalf of Mr B. He said the Councils decision not to accept the sound test evidence was in direct conflict with advice he had received from the Ministry of Housing, Communities and Local Government in 2018. He also said the Council failed to give any technical reasons why it considered Mr B’s evidence was not suitable.
- The Council said its building control team had followed the guidance in Approved Document E. It said it had no alternative but to reject the test reports submitted by one of Mr D’s members.
- Mr D was unhappy with the response and asked for it to be reviewed. The Council responded at stage two of its complaint procedure in September 2020. It said building control sought advice from acoustic specialists and other building control services and was content it interpreted the building regulations correctly.
- The Council told Mr D if he would like the Council to recognise his scheme then he needed to obtain UKAS accreditation or ANC registration. It said it was incorrect to say it had previously accepted other members test reports.
- Mr D remained unhappy with the Councils response and complained to us.
- The Department for Communities and Local Government produced a frequently asked questions (FAQ) document for Approved Document E. It says UKAS/ ANC organisations should be used unless no such organisation is available when required. It says although organisations that are not UKAS accredited or ANC registered may work to the same standard as the other organisations, their operations has not been subjected to a check by a third party.
- There is nothing to suggest there were no UKAS/ANC registered testers available when Mr B submitted his test reports.
- Mr B and Mr D say the guidance is clear the Council should not refuse to accept test reports just because they are not UKAS/ANC registered.
- This is not in the spirit of the advice given in the FAQ document. The document says it is preferable the tester is registered. I cannot criticise the Council for following this.
- The Council explained why it could not accept non UKAS/ANC registered tester reports:
“Without the appropriate accreditation via UKAS or ANC, there is no way of telling how the tests were carried out, what equipment was used and above all how the test equipment was calibrated”.
- Mr D says the Council has previously accepted test reports from his members. The Council denied this. But it subsequently found several cases where it had accepted test reports from Mr D’s members. It says these were accepted in error and it has taken action to stop this from happening in the future. This does not affect my decision as benefit to one person is not an injustice to another.
- It is open to Mr B, and Mr D’s other members to register with UKAS or ANC so their test reports are accepted by the Council.
- I do not find fault with the Council’s decision not to accept Mr B’s test report. It explained the reasons for its decision and how it was reached.
- I do not find fault with the Council.
Investigator's decision on behalf of the Ombudsman