Summary: Mrs B says the Council wrongly reinstated a company on its Buying with Confidence scheme when it had not completed any remedial works to her property or dealt with her complaint. The Council’s communications with Mrs B were not clear about what it would take into account when carrying out a re-audit and the re-audit paperwork was not completed properly. That did not affect the decision to reinstate the company on the scheme. An apology, payment to Mrs B and procedural changes are satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council wrongly reinstated a roofing company on its Buying with Confidence scheme despite the fact it had not completed any remedial works to her property or dealt with her complaint when the Council had said those two matters would form part of the re-audit process.
2. Mrs B says failures by the Council means the issues with her roof have not been put right and she has had to pay a second contractor to reinstall the roof.

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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’. 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 the complainant 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 section 34(3))
4. 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

5. As part of the investigation, I have:
• considered the complaint, Mrs B's comments and the documentary evidence Mrs B provided;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mrs 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

Buy with Confidence scheme

7. The terms and conditions for the Buy with Confidence scheme say the Council expects members to observe the terms and conditions of the scheme and any breaches may result in disciplinary action including suspension or removal from the scheme.
8. The terms and conditions say where the Council has identified a breach that is significantly detrimental to consumers it can suspend or terminate the membership with immediate effect.
9. The terms and conditions provide information for consumers about the scheme. This is the Buy with Confidence code. It says if a consumer decides to use a business from the scheme it will enter into a contract with the business and not with the Council. It says the Council will make reasonable efforts, including monitoring customer comments and carrying out audits and reviews to check the business complies with the terms of the scheme.
10. The information for consumers makes clear the Council cannot accept any liability for goods and services provided by any business and cannot guarantee the quality or condition of any goods or services provided.
11. The terms and conditions say once a business is a member the Council may carry out periodic re-audits, the frequency of which is based on a risk assessment of the business. The terms and conditions also say the Council will seek to monitor compliance on a continuing basis which may include tracking any consumer complaints.
12. The terms and conditions say it is a requirement of the scheme the business:
• comply with the legislation applicable to the business and respond appropriately to consumer complaints;
• comply with reasonable guidance as provided by the Council.
13. The terms and conditions say where the Council provides the business with guidance in respect of specific customer complaints the Council will:
• seek to agree a common history of events and facts;
• identify matters where there is no common ground;
• suggest a reasonable solution;
• but where the Council suggests a solution it is not binding in law on either the business or the customer as it is ultimately for the court to decide where the responsibility for resolving the issue lies.
14. The terms and conditions say businesses will be fully liable and responsible for the actions and omissions of all subcontractors.
15. The terms and conditions list the options for the Council where a business fails to meet the scheme requirements. That includes:
• additional advice which may be verbal or in writing;
• warning letters which may set out dates by which actions are required;
• increased frequency of audits, focusing on problem areas and the Council may set out dates by which actions need to be completed;
• suspension of membership pending completion of remedial actions;
• termination of membership.
16. The terms and conditions say the Council will be flexible and proportionate when taking any of these actions and where possible will seek to work with businesses to find the best solutions.
17. The terms and conditions say failure to respond appropriately to customer complaints is regarded as a breach of the terms and conditions for membership.
18. The terms and conditions say the Council encourages customers to provide reviews of members of the scheme. The Council will then check the review to satisfy itself the comments are genuine and publish the review on the website.

What happened

19. The Council has a Buy with Confidence scheme (the scheme). This is a trader approval scheme run by trading standards. To become a Buy with Confidence member the business must pass an audit.
20. Mrs B chose a company registered with Hampshire County Council on the Buy with Confidence scheme. That company subcontracted work, including the roof, to another company. That roofing company was on the Council’s Buy with Confidence scheme.
21. The work the roofing company completed at Mrs B’s property failed to meet the building regulations.
22. Mrs B registered negative feedback on the roofing company with the Council and raised concerns about the work it had completed. The Council contacted the roofing company which provided a description of what it understood had happened. The Council published Mrs B’s feedback and the roofing company’s response on the Buying with Confidence website.
23. Mrs B also raised concerns about the company with which she had a contract. Hampshire County Council managed the membership of that contractor and offered mediation to Mrs B. That mediation was between Mrs B and the contractor. Mrs B ended that mediation as it was not providing any results and took out a civil case against the contractor on 14 June.
24. Mrs B contacted the Council as she was dissatisfied with the Council’s consideration of her concerns. The Council reviewed her complaint and decided to suspend the roofing company’s membership of the scheme. The Council told Mrs B the suspension could be ended if remedial action was taken and re-audit was successful. The Council said the review and re-audit would take into account the roofing company’s response to the complaint and any subsequent remedial action taken would form a significant part of that re-audit.
25. The Council liaised with the roofing company to conduct a re-audit. That involved considering the paperwork for the roofing company and an officer spoke to the roofing company in July 2021. Following the conversation with the roofing company the Council emailed it to advise of the actions the roofing company needed to complete. That mainly involved the roofing company providing the Council with various pieces of missing documentation. The roofing company provided the missing documentation between July and October 2021 and also updated some of its documentation to address the Council’s concerns. By 13 October the Council was satisfied with the information the roofing company had provided and reinstated it on the scheme.
26. The Council wrote to Mrs B to tell her following a comprehensive reassessment and collecting randomly selected customer feedback the Council was satisfied the business was meeting the legal and professional conduct requirements expected of it and customer service levels were satisfactory. The Council told Mrs B it had therefore reinstated the roofing company on the scheme.
27. Mrs B raised concerns about that and pointed to the information provided to her in the Council’s letter of July 2021. Mrs B told the Council the roofing company had not undertaken any remedial action at her property and she was not satisfied the Council had taken into account the roofing company’s response to her complaint. In response the Council told Mrs B it had interpreted the reference to remedial action in relation to Mrs B as relating to the roofing company’s attempts to remedy Mrs B’s concerns whilst it was engaged in the subcontracting relationship.
28. In response to the Ombudsman’s enquiry on this complaint the Council says it considered the roofing company was limited in any offers it could make to Mrs B as it did not have a contract with her. The Council pointed out the contractor employed by Mrs B had contractual liability for any alleged breach of contract and would therefore have been expected to negotiate with Mrs B and instruct the roofing company, as subcontractor. The Council also says once Mrs B decided to take legal proceedings against the contractor in civil court the options for the roofing company to re-engage with the work at the property were ended. The Council says after completing the re-audit it was satisfied the risk to consumers and reputational risk to the scheme was sufficiently minimised as a result of the roofing company’s engagement with the Council and its completion of the Council’s requested actions.

Analysis

29. Mrs B says the Council wrongly reinstated the roofing company that completed work at her property on its Buying with Confidence scheme despite the fact it had not completed any remedial works to her property or dealt with her complaint. Mrs B says the Council should not have reinstated the roofing company when it told her those two matters would form a significant part of the re-audit process.
30. The information Mrs B is referring to here is contained in the Council’s letter of 23 July 2021. That letter said:
• ‘Suspension can be ended if remedial action is taken and re-audit is successful. I have asked that the review and re-audit takes into consideration the roofing company’s response to your complaint, and any subsequent remedial action taken by them in relation to you would form a significant part of that re-audit, but I would not necessarily anticipate that those conducting a review and re-audit would need to obtain any further information from you.’
31. Having considered the notes from the review process it is clear the Council, as part of its consideration, referred to some works undertaken at Mrs B’s property following the initial issues. However, the re-audit documentation does not refer to the information Mrs B gave about the works completed and nor is there any analysis in that documentation to show the Council’s view about what remediation, if any, had been undertaken. In addition to that, the re-audit does not refer to how the roofing company handled Mrs B’s complaint. Given those two matters were specifically mentioned by the Council as being included as part of the re-audit process I do not consider the Council carried out the re-audit in the way it told Mrs B it would. That is fault.
32. The re-audit paperwork the Council has provided to the Ombudsman has also not been fully completed. It is clear from the re-audit paperwork some items of paperwork were still outstanding and therefore sections of the paperwork, particularly relating to the complaints procedure and how that is handled, have not been completed. I appreciate at the time the original paperwork was completed the Council did not have some of the documentation it needed which is why it went back to the roofing company for more evidence. However, I would have expected the Council to complete the paperwork following receipt of that documentation to record its view as part of the completion of the audit. That again is fault.
33. What I now have to go on to consider is whether the outcome for Mrs B would have been different if the Council had handled the matter properly. In providing its response to the Ombudsman the Council has pointed out that because the roofing company was not employed directly by Mrs B and was instead a subcontractor for the contractor Mrs B employed there was limited action the roofing company could take to rectify the issues, particularly once Mrs B began legal proceedings against the original contractor. That is because the contractor held the liability for any works completed as part of the contract and was responsible for liaising with the roofing company, as subcontractor, to remedy those issues.
34. I take the Council’s point here and point out that it is not the Ombudsman’s role to comment on the merits of a decision reached without fault. My concern is that those issues relating to the contractual relationship and the impact that had on what the roofing company could do was not mentioned at the time Mrs B put in her complaint. The first time it was mentioned was in response to some comments from Mrs B following the decision to reinstate the roofing company in October 2021. If the Council considered the lack of a contract between Mrs B and the roofing company as relevant to its consideration of the actions taken by the roofing company I would have expected it to explain that to Mrs B when it informed her about its intention to carry out a re-audit. Failure to do that is also fault.
35. I cannot ignore the fact Mrs B did not have a contract with the roofing company and that the contract was with a separate contractor which fell under the remit of Hampshire County Council though. Nor can I ignore the fact Mrs B had begun legal proceedings against that contractor in June 2021. In those circumstances I cannot criticise the Council for deciding there were limited actions the roofing company could take once the legal proceedings had begun. Nor can I criticise the Council for taking into account the fact the roofing company had not received any previous complaints or negative feedback and there was no evidence of complaints against the roofing company on the citizens advice national complaints database within the previous two years. The Council also took into account the fact the roofing company had made changes to its processes as a result of concerns the Council raised during the re-audit process. After considering those points the Council was satisfied the risk to other consumers had been minimised and therefore the company could be reinstated on the scheme.
36. I recognise Mrs B strongly disagrees with that decision. However, the matters the Council has taken into account are relevant matters for it to consider and I cannot criticise it for taking those issues into account. It follows I cannot criticise it for the decision to reinstate the roofing company onto the scheme, although the Council should have properly recorded those factors in the paperwork. In those circumstances I do not consider it likely, on the balance of probability, the Council’s decision to reinstate the roofing company would have been different but for the fault I have identified. The issue instead relates more to how the Council communicated with Mrs B and its record-keeping at the end of the re-audit process.
37. I do consider though Mrs B has suffered an injustice as a result of fault in how the re-audit process was managed and as a result of the Council’s unclear communications with her. I consider the Council’s letter of 23 July 2021 wrongly raised Mrs B’s expectations about what the Council could achieve and what it would take into account during the re-audit process. I also consider this led Mrs B have to go to time and trouble to pursue her complaint and led to frustration when the roofing company was reinstated on the Council’s scheme when it had not addressed the areas the Council had said it would take into account. To remedy that I recommended the Council apologise to Mrs B and pay her £250. I also recommended the Council provide some guidelines to officers completing re audits which are triggered as a result of negative feedback or complaints from customers. That is to ensure that where the Council has identified specific issues which need to be considered as part of the re-audit officers are aware of the need to ensure a view is taken in relation to those matters when the re-audit is completed. As part of that process the Council should make clear to officers completing the audits that the paperwork needs to be fully completed once the re-audit process is at an end. The Council has agreed to my recommendations.

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Agreed action

38. Within one month of my decision the Council should:
• apologise to Mrs B; and
• pay Mrs B £250.
39. Within two months of my decision the Council should draw up guidance for officers completing re-audits triggered by negative customer reviews or complaints. It is not for the Ombudsman to tell the Council what to include in the guidance but it should cover:
• matters which should be taken into account during a re-audit, specifically referring to any issues identified as part of the consumer review/complaint;
• clear communications with consumers about the re-audit process; and
• completion of paperwork.

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Final decision

40. I have completed my investigation and found fault by the Council in part of the complaint which caused Mrs 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