Summary: A woman complained about the failure of the Council’s Building Control service to take action about a flue at her neighbour’s property which she said contravened the Building Regulations. But we do not have grounds to investigate this matter because there is insufficient evidence of fault by the Council.

The complaint

1. The complainant, who I shall call Miss X, complained that the Council’s Building Control service had failed to take action concerning a flue for a stove installed at her neighbour’s house in 2019. Miss X said the flue did not comply with the Building Regulations (‘the Regulations’) and was seriously affecting her health because of noxious fumes. Miss X also said Building Control had issued a lot of misinformation to her about its limited responsibility to intervene. She felt that Building Control should have enforced the removal of the flue.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We provide a free service, but must use public money carefully. We do not start an investigation if, for example, we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
3. 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)

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How I considered this complaint

4. I considered the information Miss X provided about her complaint, and her comments in response to a draft version of this decision. I also took account of information from the Council about its involvement in Miss X’s case.

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Assessment

5. Miss X first contacted Building Control with her concerns soon after the flue was installed. But Building Control advised that it had played no part in checking and certificating compliance with the Regulations in this case because it had been dealt with through the ‘Competent Persons Scheme’ process.
6. Competent Persons Schemes were introduced by the government to allow installers deemed competent through membership of accredited organisations (in this case HETAS) to self-certify that their work complies with the Regulations. This excludes councils from the certification process so developers and installers do not need to rely on inspections by a Building Control Body (BCB).
7. However there is a requirement that the appropriate BCB is notified about compliance or given a copy of the installer’s certificate. BCB’s are authorised to accept the notification or certificate as evidence of compliance with the Regulations.
8. The Council said it was notified about the stove installation’s compliance with the Regulations at an early stage. Therefore it considered there was no requirement on it to intervene further in response to Miss X’s concerns that the flue was non-complaint.
9. Miss X queried the Council’s view about the extent of its responsibilities under the Competent Persons Scheme process and said she had received conflicting advice from HETAS. But from the information provided I am not convinced the Council’s explanation of the process and its role was substantively inaccurate, or that we could say it was at fault for providing misinformation in this respect.
10. There are formal enforcement powers which a council can use to achieve compliance with the Regulations in the case of a breach, if informal routes are unsuccessful. In particular a council can prosecute an installer who contravenes the Regulations, and can serve an enforcement notice requiring the owner to remove the work which is in breach.
11. In its final response to Miss X’s complaint the Council recognised it has these enforcement powers, but said it would only intervene where there was reasonable doubt that work carried out by a competent person contravened the Regulations. In this case the Council said there was no suggestion that the flue does not comply with the relevant requirements.
12. The Council also said a senior Building Control officer viewed the site in 2019 and concluded the position and size of the flue was not in breach of the Regulations.
13. Primary responsibility for ensuring building work is in line with the Regulations rests with those who commission it and those who do the work. The Council has confirmed that the stove and flue were installed under the Competent Person’s Scheme. As a result I consider the Council was entitled to rely on this as evidence they had been correctly installed by a suitably qualified person.
14. Nonetheless the Council’s specialist officers have also reached their own view that the flue conforms with the Regulations. However we cannot question the merits of councils’ decisions without evidence of fault in the way they were made. In this case I note the Council reached its view with reference to relevant sections of the Building Regulations 2010 Approved Document J. Miss X disagrees with the Council’s conclusions. But I have not seen evidence to show there was fault in the Council’s interpretation of Approved Document J in this respect.
15. In the circumstances I am not convinced there is justification for starting an investigation in Miss X’s case. In particular I do not see we would be in a position to question the merits of Council officers’ judgements on the basis there was fault in their decision-making and, therefore, could not conclude the Council should necessarily have found there was a breach of the Regulations and taken enforcement action as a result.

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Final Decision

16. We do not have grounds to investigate Miss X’s complaint about the failure of the Council’s Building Control service to take action regarding a flue for a stove installed in her neighbour’s property. This is because there is insufficient evidence of fault by the Council regarding this matter.

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Investigator's decision on behalf of the Ombudsman