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Allerdale Borough Council (20 009 818)

Category : Planning > Building control

Decision : Upheld

Decision date : 07 Oct 2021

The Ombudsman's final decision:

Summary: Mr B says the Council gave him conflicting information about work he needed to undertake to comply with the building regulations, failed to properly inspect his property, interfered with his private proceedings against the builder, wrongly refused to prosecute the builder, failed to respond to his queries and harassed him and his wife. There is no fault in how the Council handled this case with the exception of how it explained its developing position to Mr B and how it responded to his queries. An apology and training for officers is satisfactory remedy.

The complaint

  1. The complainant, whom I shall refer to as Mr B, complained the Council:
    • gave him conflicting information about work needed to comply with the building regulations and based that information on an inadequate inspection;
    • interfered in his private proceedings against the builder;
    • unreasonably refused to prosecute the builder despite originally agreeing to do so;
    • failed to respond to his queries; and
    • harassed him and his wife.
  2. Mr B says the Council’s failures have caused delay and extra cost and have undermined his ability to win a civil case against the builder. Mr B also says the remedial works for his property are likely to cost around £50,000 which he cannot afford and can only finance if the Council prosecutes the builder.

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The Ombudsman’s role and powers

  1. 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. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mr B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1) and 26A(1), as amended and 34(3))
  2. 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. As part of the investigation, I have:
    • considered the complaint and Mr B's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided.
  2. Mr B 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

What should have happened

  1. Section 35 of the Building Act 1984 (the Act) says if a person contravenes any provision contained in building regulations, he is liable on summary conviction to a fine not exceeding level 5 on the standard scale and to a further fine not exceeding £50 for each day on which the default continues after he is convicted.
  2. Section 36 of the Act says if any work to which building regulations are applicable contravenes any of those regulations, the local authority, without prejudice to their right to take proceedings for a fine in respect of the contravention, may by notice require the owner:
    • (a)to pull down or remove the work, or
    • (b)if he so elects, to effect such alterations in it as may be necessary to make it comply with the regulations.
  3. Section 77 of the Act refers to dangerous buildings. This section says if it appears to a local authority a building or structure, or part of a building or structure, is in such a condition, or is used to carry such loads, as to be dangerous, the authority may apply to a magistrates’ court, and the court may:
    • (a)where danger arises from the condition of the building or structure, make an order requiring the owner to:
    • (i)to execute such work as may be necessary to obviate the danger or,
    • (ii)if he so elects, to demolish the building or structure, or any dangerous part of it, and remove any rubbish resulting from the demolition, or
    • (b)where danger arises from overloading of the building or structure, make an order restricting its use until a magistrates’ court, being satisfied that any necessary works have been executed, withdraws or modifies the restriction.
  4. The advice on the planning portal says if you are employing a builder, the responsibility for complying with the building regulations will usually be theirs. It says though if you are the owner of the building it is ultimately you who may be served with an enforcement notice if the work does not comply with the regulations.
  5. The Council’s enforcement policy says in most cases building control enforcement notices will be served on the owner.
  6. The Council’s enforcement policy says for notices delivered by hand these will be confirmed by a certificate of service signed by the officer concerned and, where possible, accompanied by a dated photograph of the place where the notice was addressed to such as the house number and post/letter box.

What happened

  1. Mr B’s wife owns a property which she and Mr B live in. Mr B and his wife contracted a builder to carry out extensive works to their property. Mr B carried out some of those works himself. As Mr B had some concerns about the works completed he contacted the Council. The Council told Mr B to put in a building regulations application to allow a full inspection. The Council agreed it would normally take action against the person carrying out the work which at that point the Council believed to be the builder. The Council offered to send one of its building control officers to visit before Mr B put in a building regulations application.
  2. A building control officer visited in July 2020. The officer spoke to Mr B and the builder. Both confirmed Mr B had carried out some of the work to the property including removal of internal walls and work to the electrics.
  3. The Council emailed Mr B’s solicitor in August 2020 to tell them about the outcome of the visit. The Council listed the works requiring building regulations approval and recommended Mr B put in a building regulations application. The Council explained as Mr B had completed some of the work it was likely the Council would pursue a prosecution against Mr B but that would not mean actions against other parties would be discounted. The Council stressed prosecution was a last resort and said a building regulations application and agreeing remedial works as the best way forward. The Council also wrote to the builder to explain the same thing.
  4. Mr B put in a complaint, which the Council responded to in September 2020. The Council again said Mr B should put in a building regulations application for regularisation and carry out remedial work. The Council went on to address the areas Mr B was concerned about and the action it required him to take.
  5. The Council wrote Mr B later in September to encourage him to put in an application to regularise the work. The Council asked for an application within two weeks. The Council told Mr B if it did not receive an application it would likely issue an enforcement notice against the owner of the property
  6. Mr B asked for more time as he was waiting for a structural survey. In November 2020 the Council again asked Mr B to put in a building regulations application. The Council said it had already explained what remedial works he needed to make the home safe. The Council said it would only consider enforcement action if the work was not completed in the timescales specified or if it did not receive an application. The Council said in that instance it would serve a notice on the owner of the property.
  7. Mr B provided the Council with a copy of his surveyor’s report in December 2020. Mr B asked the Council to confirm it would prosecute the builder given the report he had commissioned showed defects and violations.
  8. The Council took advice from its solicitor and sent Mr B’s wife, as owner of the property, a requisition for information form in December 2020. The Council asked Mr B’s wife to return the form within 28 days, explaining this would ensure all parties having an interest in the property were summonsed to appear in the magistrates court. The Council asked Mr B’s wife to provide any mitigating circumstances along with the completed form.
  9. Mr B responded to the Council’s letter at the end of December, raising concerns about its position. Mr B’s wife also returned the completed requisition for information form.
  10. Council officers discussed the case with the Council’s solicitor in January 2021 and decided to serve a section 77 notice relating to concerns about the dangerous works. A Council officer hand-delivered that section 77 notice to Mr B’s property on 3 February 2021. The notice advised Mr B’s wife needed to arrange for electrical work by a registered member of a competent persons scheme and alterations to windows to allow a means of escape in order to remove any danger.

Analysis

  1. Mr B says the Council carried out an inadequate inspection and gave him and his wife conflicting information about the work needed. The inspection Mr B is referring to is the inspection officers carried out in July 2020. I am satisfied though this was not intended to be a full inspection. I am satisfied the Council made that clear to Mr B because when it wrote to him after the inspection it told him he needed to put in a building regulations application so the Council’s building control department could carry out a full assessment. I am satisfied the only reason that full assessment has not taken place is because Mr B has not put in a building regulations application. So, I find no fault in how the Council carried out the inspection in July 2020.
  2. In reaching that view I recognise Mr B has provided the Council with a survey he has had undertaken which identifies some additional issues. I understand why Mr B would be concerned the Council has not referred to all the issues now identified by his surveyor in its correspondence with him. However, I am satisfied this is because the Council has not completed a full assessment as it has not received a building regulations application. I therefore have no grounds to criticise it.
  3. I have found no evidence to suggest the Council gave Mr B and his wife conflicting information about the work they needed to carry out. Rather, the evidence I have seen satisfies me the Council has been consistent in its description of the issues it wanted to investigate further as part of a building regulations application. I recognise though the notice issued by the Council in February 2021 lists fewer issues for Mr B and his wife to address than had been referred to in previous correspondence. I am satisfied this is because the notice the Council issued in February 2021 related to those parts of the work which the Council considered made Mr B’s property dangerous. The Council had made clear in previous correspondence with Mr B that although there were a number of issues that needed to be resolved the two that were of particular concern to the Council were those which are now covered by the section 77 notice. I therefore do not consider the Council has been inconsistent or has not made clear to Mr B what action he needs to take.
  4. Mr B says the Council interfered in his private proceedings against the builder. Mr B says the Council told his builder it had no issues with his work. Mr B says this has undermined his ability to get the builder to resolve the issues. Having considered the documentary evidence I have found nothing to suggest the Council told Mr B’s builder it did not have any issues with his work. Rather, the documentary evidence I have seen satisfies me the Council wrote to Mr B’s builder to tell him the Council needed an application for building regulations approval so it could fully assess the work. None of the Council’s communications with the builder told him it did not have any issues with his work. I recognise this is information Mr B says the builder’s solicitor told Mr B’s solicitor. However, if that is correct, it is not supported by the documentary evidence I have seen.
  5. Mr B also says the Council advised his builder not to participate in the joint structural survey. Mr B says this caused additional delay and extra cost. I am satisfied when writing to Mr B’s builder about the need for a full assessment following submission of a building regulation application the Council recommended he put the independent survey of the work carried out on hold. The context of that comment was in relation to the fact there was an ongoing building regulations matter and the Council had asked for submission of a building regulations application which would have allowed a proper assessment of the works. I do not consider this amounts to the Council interfering in Mr B’s private proceedings against the builder. Nor could I criticise the Council for giving the builder this advice given the Council had made clear to Mr B it would carry out a full assessment of the works once he put in a building regulations application.
  6. Mr B's main concern is the Council refused to pursue and prosecute the builder, despite originally saying any action would be taken against the builder. Mr B says because the Council refused to prosecute the builder he (the builder) has refused to undertake any of the remedial works. Mr B says this has put him in the position of having to pursue private legal proceedings against the builder or complete the works to his property himself, neither of which he can afford.
  7. I understand why Mr B would want the Council to pursue and prosecute the builder. However, there is no requirement for the Council to do that. There is a provision under section 35 of the Act for the Council to pursue the builder rather than the owner of the property. However, although the Council has that power it does not mean this is something it has to do. I would, however, expect the Council to properly consider the options open to it before reaching a reasoned decision.
  8. In this case there has been some disagreement amongst officers about the appropriate way to proceed. That has resulted in different information being given to Mr B at different times. It is clear from the documentary evidence the Council told Mr B in April 2020 it would be good practice for it to pursue the builder. Mr B has relied on that in questioning the Council’s decision to pursue his wife, as the owner of the building. I am satisfied though in April 2020 the Council did not know Mr B had completed some of the work to the building. The Council did not know that until after its visit in July 2020. Following that visit the Council wrote to Mr B’s solicitor and made clear it was now aware Mr B had completed some of the work and explained that if matters were not resolved the Council may pursue action against Mr B and the builder. I do not criticise the Council for changing its approach at this point because it was based on new information and was properly explained to Mr B.
  9. It is clear by January 2021 the Council had decided to use section 77 of the Act 1984 which relates to dangerous buildings. Under that section of the Act of the action the Council will take is against the owner of the property rather than the person that carried out the work. I cannot criticise the Council for deciding to pursue action under section 77 and it therefore follows I cannot criticise the Council for pursuing action against the owner of the property. That is because it is clear from the documentary evidence the Council’s main concern was making a dangerous building safe and therefore section 77 was the appropriate section under which to take action. I am satisfied the Council took advice from its solicitor before deciding to proceed in this manner. I therefore could not say the Council failed to reach its decision properly. Consequently, I have no grounds to comment on the merits of the decision itself, no matter how much Mr B disagrees with it.
  10. I am concerned though the Council did not properly explain to Mr B why it had decided to take action against the owner of the property rather than Mr B and the builder, as the Council had previously indicated. By the point at which the Council issued the section 77 notice Mr B had put in a list of concerns he had about how the Council had managed the case. Rather than respond to those concerns the Council issued the section 77 notice. Given Mr B had raised concerns about the communications he had received from the Council about what action would be taken and against whom I would have expected the Council to write to him to explain why it was pursuing action under section 77 and why that action was against the owner of the property. Failure to do that is fault.
  11. That has clearly caused Mr B some distress and led to frustration about the Council’s changing position. However, for the reasons already given I cannot criticise the Council’s decision to use section 77 and pursue the owner as that decision was not affected by fault. I do not consider it likely, on the balance of probability, Mr B would have accepted the Council’s explanation even if it had been given as he has been consistent throughout that he believes the Council should take action against the builder. I therefore consider an appropriate remedy would be for the Council to apologise to Mr B and arrange training for building control officers on documenting decision-making and communicating with residents. The Council has agreed to my recommendations.
  12. Mr B says the Council failed to respond to his queries which delayed work to his property. As I said earlier, I am satisfied the Council has been consistent about the work required at Mr B’s property and has at all stages encouraged him to submit a building regulations application which would have allowed the Council to carry out a full assessment. That would have given Mr B more information about the works which did not comply with the building regulations. It was Mr B’s decision not to pursue the building regulations application but that has necessarily meant a full assessment has not taken place. Nevertheless, as I said earlier, I would have expected the Council to explain its reasoning to Mr B for pursuing the owner of the property rather than the builder, particularly given what the Council said in April 2020. As I also said earlier, if the Council had responded to the points Mr B raised about those issues he would at least have had an explanation, albeit likely one he would not agree with. Failure to respond to the points Mr B raised is fault.
  13. Mr B says the Council harassed him and his wife by sending officers to his house to deliver letters. In contrast the Council says it sent an officer to deliver the section 77 notice to ensure it was delivered, particularly during a period when the country was in lockdown and the Council’s offices were closed. It is not unusual in my experience for Council officers to hand deliver important letters to residents. Doing that is therefore not fault and is not evidence of harassment. In addition, the Council’s enforcement policy, which I refer to in paragraph 12, refers to circumstances where notices are delivered by hand. It is therefore clear this is not an unusual occurrence and not specific to Mr B. I therefore do not consider it fault or evidence of harassment.
  14. Mr B also considers the Council’s decision to pursue his wife as evidence of harassment. As I said earlier though, section 77 of the Act provides for the Council to take action in respect of dangerous properties against the person that owns the property. The Council has acted in accordance with the legislation and I therefore cannot criticise it.

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Agreed action

  1. Within one month of my decision the Council should apologise to Mr B for the frustration it caused him by failing to explain its developing position and respond to the points he made about the Council’s decision-making.
  2. Within two months of my decision the Council should carry out training for building control officers on documenting reasoning when reaching decisions about what action to take and who to pursue and the need to keep those involved up to date with the Council’s thinking.

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Final decision

  1. I have completed my investigation and found fault by the Council in part of the complaint which caused Mr B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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