Summary: We will not investigate Mr X’s complaint about the Council’s decision to issue a Building Regulations certificate to his extension in 2015. Even if there were fault by the Council, there is not enough evidence that actions or inactions of the Council in its Building Regulations role directly led to the cracks in Mr X’s extension wall. It is reasonable to expect Mr X to take the matter to court.

The complaint

1. Mr X built a large rear extension to his property about five years ago. On completion, the Council issued the Building Regulations certificate. In 2018, cracks started to appear down the extension’s wall. Mr X claimed on his insurance but the claim was declined. The insurers said the foundations had not been made deep enough due to nearby tree roots and were not compliant with the relevant regulations.
2. Mr X complains the Council incorrectly issued a Building Regulations certificate for his extension. He has a damaged extension. He wants help to determine why there is a difference between his insurer’s survey and the Council’s findings, and a resolution to the matter.

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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. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the fault has not caused the injustice to the person who complained; or
• we cannot achieve the outcome someone wants;
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended)

4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

5. As part of my assessment I have:
• considered the complaint and the documents provided by Mr X and the Council;
• issued a draft decision, inviting Mr X to reply, and considered his response;
• discussed the complaint with Mr X.

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What I found

6. Mr X says his insurer’s assessment of the extension, that its foundations were not deep enough, is at odds with the Council’s decision to sign off the work for Building Regulations purposes. But the Council’s inspections of his extension or issue of a completion certificate are not a guarantee that all works done by the builder met Building Regulations. The council’s role is to maintain building standards to protect the public in general, rather than to protect the private interests of individuals. This means that where a council considers a building is safe and poses no dangers to the wider public, they would certify it as compliant with the regulations. A Building Regulations certificate is not a separate guarantee for property owners that they will not have future problems with their development. Councils are not a ‘guarantor of last resort’ when things go wrong. They are not directly liable for any inadequate building work.
7. When carrying out their building control functions, councils will normally visit at different times, but they are not required to do so and will not be present for most of the project. Councils are not expected to act as a site manager or ‘clerk of works’ in this way. Property owners who want that level of supervision of their builder would need to employ their own site manager to oversee the project at every stage.
8. Even if there were fault by the Council here, I do not consider we should investigate. I say this because there is not enough evidence that Mr X’s core injustice, the damage to his extension wall, was caused by the action or inaction of the Council in its limited Building Regulations role.
9. The primary responsibility for building work and compliance with the regulations rests with the building’s owners, and with any contractor they employed to do the work for them. If he has not already done so, Mr X may wish to seek independent advice on how he might pursue legal redress from the builder. I consider it is reasonable for Mr X to take the matter to court as it is a private contractual issue between him and the builder, which only a court could rule on and formally order any suitable remedy.
10. I note Mr X is seeking help from the Ombudsman with his insurer. We cannot be involved with Mr X’s insurance claim. We have no powers to investigate the insurer’s decision not to pay out Mr X’s claim, as they are outside our jurisdiction.

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Final decision

11. We will not investigate this complaint because:
• even if there were Council fault, there is not enough evidence of a link between the actions or inactions of the Council in its Building Regulations role and the injustice Mr X has suffered to give us grounds to investigate;
• the matter is a private contractual matter between him and his builder, which it would be reasonable for Mr X to take to court.

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Investigator's decision on behalf of the Ombudsman