Summary: Ms X complained the Council failed to take suitable enforcement action over a building control issue affecting the integrity of the building next to hers. Ms X complained the Council’s actions caused an increase in the cost of her renovation works and caused her to incur extra costs for scaffolding the Council requested she kept in place. We considered the Council is not responsible for Ms X’s increased costs to her renovation works and the courts is a more suitable means to seek compensation. We did find fault with the Council’s actions about Ms X keeping the scaffolding and for delays in handling her planning application and complaint. The Council has agreed to our recommendation to provide Ms X with a rebate for specific scaffolding costs, an apology and a payment of £250 to reflect avoidable distress, inconvenience and frustration.

The complaint

1. Ms X complained the Council failed to take suitable enforcement action about a building control issue affecting the structural integrity of the building next to hers.
2. Ms X says the failure of the Council to take enforcement action has resulted in her being unable to complete refurbishment of her property. Ms X says the Council’s delay has increased her proposed refurbishment costs by £133,200 because of a rise in costs.
3. Ms X also complained the Council told her to keep scaffolding in place to prop-up her neighbour’s building which has cost her £14,983.
4. Ms X says her building is now also uninsurable and she cannot sell her property until her neighbour’s building is made safe.

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The Ombudsman’s role and powers

5. 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)
6. We cannot question whether an organisation’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)
7. We cannot investigate a complaint if someone has a more suitable remedy available by way of court proceedings about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
8. If we are satisfied with an organisation’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

9. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
10. The Council provided comment on my draft decision which I considered before making my final decision.

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What I found

What happened

11. The Secretary of State for Culture, Media and Sport designated Property 1 a building of special architectural or historic interest in September 2015.
12. The Council completed a site visit of Property 1 in October 2015 and completed a building survey in November 2015.
13. Ms X and her architect, the Architects, met with the Council in April 2016 to discuss potential renovation works to a property, Property 2, that adjoined Property 1.
14. On 20 May 2016, the Council issued a Repairs Notice to the owner of Property 1 to complete remedial works to the property within 12-months from the date of the notice. The Repairs Notice did not require any structural works from the owner of Property 1.
15. Ms X put in a planning application for her renovation works in September 2016 which the Council granted in November 2016.
16. The Council noted the owner of Property 1 had not completed the works required under the Repairs Notice by May 2017. The Council decided the works did not meet the threshold for an Urgent Repair Notice, Compulsory Purchase Order or Service of an Improvement Notice. The Council decided to take no further action but kept Property 1 under review and remained in contact with the owners of Property 1.
17. Ms X and the Architects arranged for contractors to complete the renovation works to Property 2 for £101,251. The contractors started work on Property 2 with Ms X erecting scaffolding on 2 July 2018.
18. In July 2019, the Council received reports of suspected subsidence at Property 1 and commissioned a survey of the property.
19. On 14 August 2019, the Architects confirmed with Ms X they expected the scaffolding to come down by “the end of next week”, 25 August 2019. The scaffolding did not come down.
20. The Council wrote to Ms X on 30 August 2019 to request installation of netting around the scaffolding area given concerns about the building and risk of falling masonry. Ms X contracted a structural engineer to complete a visual inspection.
21. The Council meanwhile closed off the street and issued a notice to the owner of Property 1 of its intention to Execute Emergency Measures to make safe what it considered a dangerous building.
22. The Council wrote to the Architects on 12 September 2019. The Council said its structural engineer advised “the scaffold [at Property 2] should remain in place as it is providing an element of support …to the front elevation of Property 1”. The Council asked that it tell it if Ms X planned to remove the scaffolding. The Architects told the Council they had a roofer booked in to complete the roof-works on 16 September 2019, after which point the scaffolding would come down. The Council told the Architects the road would still be closed so to reschedule the roof works.
23. The Council installed a specialist prop to the front elevation on 13 September 2019. The Council’s structural engineer told the Council that Property 2’s scaffolding “should (ideally) be kept in place”. The structural engineer told the Council that if Ms X removed this scaffolding the Council would need to give consideration to a temporary restraint.
24. The Architects and Ms X met with the Council on-site on 20 September 2019. The Council told Ms X she would need to submit a retrospective planning application for a steel frame installed in Property 2. The Council told Ms X she should not continue with the build until she had received retrospective planning permission.
25. The Architects put in the retrospective planning application on 26 September 2019.
26. On 15 October 2019, a project manager working Ms X’s renovation project emailed Ms X to confirm the Council’s structural engineer advised to keep the scaffolding in place during a site visit the previous week.
27. The Council continued to attempt contact with the owners of Property 1 about the works required. On 5 November 2019, the Council confirmed with Ms X it was trying to seek voluntary compliance with the owner of Property 1. In this email the Council told Ms X it had not issued a notice prohibiting access to Property 2 but its structural engineers advised contractors “should not use the scaffold” and “works must not be undertaken while the temporary props in place”.
28. By 27 November 2019, the Council accepted the retrospective planning application as valid. The Council set the statutory determination deadline of 22 January 2020 for deciding the planning application.
29. The Council completed a survey of Property 1 in December 2019 following a failed attempt in November 2019 because of lack of access.
30. The Council’s planning department advised Ms X on 19 December 2019 to avoid from further building works until it had granted planning permission as this would open her up to a criminal offence. The Council officer also said ‘removing the scaffolding seems inappropriate, particular if it is serving a structural purpose’.
31. On 13 January 2020, the Council planning department asked Ms X to provide a substantial report to prove installation of the steel frame has not impacted the structural stability of Property 1. The Council said it could not approve the retrospective planning application without this. The Architects and the Council entered into discussions about this and the Architects agreed to arrange a structural report.
32. The Council confirmed with the Architects on 17 February 2020 that it was still waiting on the report from Ms X before it could continue with deciding on the planning application. The Council said it would need five weeks to make an assessment and determination on the application on receiving this information.
33. The Architects presented the structural report for the retrospective planning application on 28 February 2020.
34. The Architects contacted the Council on 14 April 2020 to request an update to the retrospective planning application and to seek permission to continue with the build. The Architects also asked the Council to pay for the extra time the scaffolding remained in place.
35. The Council responded to the Architects on 11 June 2020 to advise the Council would not cover the cost of the scaffolding and this was the responsibility of the owner of Property 1. The Council also approved the retrospective planning application on 11 June 2020.
36. Ms X continued with the works at Property 2 following the Council granting the retrospective planning permission.
37. The Council continued to pursue the owners of Property 1 for the costs associated with propping of the property. By September 2020 the Council decided it needed to complete a structural survey to decide if it could issue the owners of Property 1 with an Urgent Works Notice.
38. On 22 September 2020, the Architects told the Council they had completed the roof works and asked the Council if they could remove the scaffolding. The Council advised the Architects on 23 September 2020 it was awaiting completion of a structural survey to “inform the Council whether or not it is safe to remove the supporting scaffolding”. The Council said it needs this information before “the support is removed”.
39. The Architects contacted the Council on 28 September 2020 to request it covers the cost of the scaffolding given Ms X had now no need for the scaffolding. The Council failed to advise whether it would or would not cover these costs. The Architects continued to chase the Council but received no confirmation so removed the scaffolding on 16 October 2020 and told the Council.
40. The Council received the structural report in November 2020 and set a deadline of 10 December 2020 for the owners of Property 1 to provide a timetable of works to make the building safe. The owners of Property 1 failed to work with the Council.
41. The Architects contacted the Council on 26 January 2021 for an update on the works to make Property 1 safe. The Architects said Ms X could not progress further with her build until Property 1 was made safe.
42. In February 2021, the Council confirmed with the owners of Property 1 it was looking to draft an Urgent Repair Notice and arranged for an inspection. The owners of Property 1 prevented inspection of Property 1 until April 2021.
43. Ms X complained to the Council on 23 March 2021.
44. Ms X chased the Council on 30 July 2021 for a response to her complaint.
45. The Council continued to try to reach a voluntary solution with the owners of Property 1 until October 2021.
46. Ms X complained to the Council again on 30 September 2021.
47. On 19 October 2021, the Council issued an Urgent Works Notice to the owner of Property 1 and provided Ms X with a copy. The Urgent Works Notice required the owner of Property 1 to start building works by 18 November 2021 to make the building safe and provided details of the full works required.
48. Ms X chased the Council on 4 November 2021 for a response to her complaint.
49. On 1 December 2021, the Council responded to Ms X’s complaint. Ms X was dissatisfied with the Council’s response so brought her complaint to the Local Government and Social Care Ombudsman (the Ombudsman).
50. The owner of Property 1 failed to respond to the Urgent Works Notice. The Council has sought contractors to complete “raking shore support” works on Property 1. The Council had two separate contractors pull out of the works in February 2022 and March 2022 before seeking agreement with a third contractor.

Analysis

Delays to renovations - state of Property 1

51. Ms X complained the Council failed to take suitable enforcement action about a building control issue affecting the structural integrity of the building next to hers.
52. Ms X says the failure of the Council to take enforcement action has resulted in her being unable to complete refurbishment of her property. Ms X says the Council’s delay has increased her proposed refurbishment costs by £133,200 because of a rise in costs.
53. While the Council issued a Repairs Notice to the owner of Property 1 in May 2016, this Repairs Notice did not relate to structural issues. Nor did it raise concerns that Property 1 was in a dangerous state of repair. The Council was entitled to decide it was not expedient for it to take further action in May 2017 when the owners of Property 1 did not comply with the Repairs Notice.
54. The Council first became aware of potential structural issues with Property 1 in July 2019. By September 2019, the Council had investigated these issues and acted to protect the public from the dangerous state of the property. Councils may act to protect the public if it considers a building or structure in its area to be unsafe.
55. The result of the Council’s actions in September 2019 meant that Ms X could not progress with her renovations to Property 2 from 16 September 2019. While Ms X has been able to continue with some works since this point, further progress has continued to be prevented because of Property 2.
56. Councils may order works to improve defective, dangerous or dilapidated buildings or structures. If the building owner does not comply with the order, the Council may carry out the works and charge for its costs. While the Council can take these actions, Council’s are not a “guarantor of last resort” when things go wrong.
57. Council’s are not directly liable for poor or unlawful building works, or for dangerous buildings left to go into disrepair. Primary responsibility for building work and compliance with the Regulations rests with building owners and builders. Ultimately, it is the owner of Property 1 that is at fault for the poor building works and state of disrepair at Property 1, not the Council.
58. The Council’s role is to maintain building standards for the public in general, rather than to protect the private interests of individuals. Ms X has experienced a private loss because of the state of disrepair of Property 1. Any potential delays in the Council’s actions do not override that the owners of Property 1 are the party responsible for the state of repair of the building. Any loss Ms X experienced in her renovations because of this is a private civil dispute between Ms X and the owners of Property 1. Because of this, we would not expect the Council to pay compensation caused by the acts or omissions of private individuals.

Delays to renovations - retrospective planning application

59. The Council requested Ms X submit a retrospective planning application on 20 September 2019 as Ms X had installed an unauthorised steel frame to a Grade II listed building.
60. The Architects did not include the details of the steel frame within the original planning application. The Council was entitled to decide that Ms X needed to apply for retrospective planning application for the steel frame before continuing with the building works. Since the Council was entitled to make this decision, this is not something the Ombudsman can find fault with.
61. The Council was also correct to advise Ms X in December 2019 not to continue with the building works while awaiting retrospective planning permission. The Council explained the possible ramifications to Ms X if she chose to continue. The Council’s advice was accurate and appropriate.
62. I also do not find fault with the Council for seeking a substantial report from Ms X into the steel frame. The Council could have decided to reject the retrospective planning application without making this request of Ms X. Instead the Council chose to extend the timescales for the planning application so Ms X could provide extra information which would enable it to approve the planning application. The Council was entitled to take this approach and this enabled Ms X to get the information needed to ultimately gain planning approval.
63. The Council said it would need five weeks from the date of receiving the structural report to reach a determination on the retrospective planning application. The Architects provided the report on 28 February 2020. Five weeks from this date is 3 April 2020. The Council took until 11 June 2020 to approve the retrospective planning application. This is nearly ten weeks beyond the timeline outlined by the Council. This is fault. It is of note that during this period of delay, the Council experienced increased pressure on services because of the Covid-19 pandemic. While this helps explain the reason for this delay, the delay itself is still fault.
64. While this delay of nearly ten weeks is fault, this has not caused further delay to Ms X in completing her renovation works. Because Property 1 remains unsafe to date, Ms X would not have been able to continue with her renovation works even if the Council had not delayed in deciding the retrospective planning application.
65. This fault by the Council has not contributed to the overall delay in Ms X’s renovation works but did cause Ms X avoidable distress and inconvenience.

Scaffolding

66. Ms X also complained the Council told her to keep scaffolding in place to prop-up her neighbour’s building which has cost her £14,983.
67. Ms X erected scaffolding at Property 2 on 2 July 2018. Ms X originally erected this scaffolding as part of her renovation works and Ms X is therefore responsible for the cost of this scaffolding.
68. In August 2019, the Architects confirmed with Ms X they expected the scaffolding to come down by 25 August 2019. This did not happen. The Architects later confirmed with the Council they had scheduled the roofing work for completion on 16 September 2019.
69. The Council told the Architects to reschedule these works as it had closed the road because of the dangers presented by Property 1. The Council also told the Architects the scaffolding “should remain in place” because of Property 1. The Council’s structural engineers also made it clear that if Ms X removed the scaffolding the Council would need to consider further temporary restraints, to address falling masonry, in addition to the propping.
70. The Council was aware that Ms X intended to remove the scaffolding on 16 September 2019. The Council was also aware that it would need to complete works to make Property 1 safe should Ms X remove the scaffolding. While the Council did not directly instruct Ms X or the Architects to keep the scaffolding it did tell her the scaffolding “should” remain in place.
71. The Council’s structural engineer reiterated this advice to keep the scaffolding in place in October 2019. The Council’s structural engineer also advised that this scaffolding should not be used which the Council confirmed to Ms X on 5 November 2019. The Council’s planning department also told Ms X that ‘removing the scaffolding seems inappropriate’ in the email of 19 December 2019.
72. On 11 June 2020, the Council confirmed with the Architects that it would not cover the cost of the scaffolding and this was the responsibility of the owner of Property 1. From 11 June 2020, Ms X could have removed the scaffolding given the clarification from the Council about the responsibility being with the owner of Property 1. However, the Council granted retrospective planning permission on 11 June 2020 which enabled Ms X to continue with her renovations.
73. The Council has told Ms X she “should” keep the scaffolding on Property 2 and should not use this scaffolding until 11 June 2020. It was only on 11 June 2020 the Council told Ms X it would not cover the cost of the scaffolding and that responsibility lay with Property 1.
74. The Council has a responsibility to maintain the standards of buildings and prevent a danger to the public. The Council knew it would have to carry out its own temporary restraints if not for Ms X’s scaffolding. The Council has persuaded Ms X to keep this scaffolding in place at cost to her and in knowledge of no benefit to Ms X’s renovation works. This is fault.
75. The Council should provide a refund to Ms X for the full cost of scaffolding Ms X incurred from 17 September 2019 up to 11 June 2020.
76. Ms X used the scaffolding from 11 June 2020 until 22 September 2020. The Council has no responsibility for Ms X’s costs during this time.
77. However, from 22 September 2020 until 16 October 2020 Ms X kept the scaffolding on Property 1. The Architects tried to engage with the Council during this time to determine if the Council wished Ms X to keep the scaffolding at cost. The Council confirmed it wished for the scaffolding to remain in place but failed to confirm whether it would cover the costs.
78. The Council’s failure to engage with Ms X and provide clear information has caused Ms X to incur further costs for scaffolding from 22 September 2020 to 16 October 2020. The Council should also provide a refund to Ms X for this time period for the cost of scaffolding.

Council complaints policy

79. The Council has a three-stage complaints policy.
80. The Council says it will provide a person with an informal Stage 1 complaint response within 15 working days of receipt of a complaint.
81. Should a person disagree with the Stage 1 complaint response they can request a response at Stage 2. The Council says it will provide a Stage 2 complaint response within 28 working days of receipt of a request.
82. If a person is also dissatisfied with the Stage 2 complaint response, they can request consideration at Stage 3. The Council says it will provide a Stage 3 complaint response within 28 working days of receipt of a request.

Complaint handling

83. Ms X raised her first complaint with the Council on 23 March 2021.
84. The Council failed to provide any meaningful response to Ms X’s complaint until 1 December 2021 despite chasers from Ms X, or her associates, on 20 July 2021, 30 September 2021 and 4 November 2021.
85. The Council can take up to a total of 71 working days to respond to a person’s complaint, combining the full response times at Stage 1, Stage 2 and Stage 3 of its process. The Council took 178 working days to provide any meaningful response to Ms X’s complaint.
86. The Council has both failed to follow its complaints procedure and failed to meet its timescales, delaying by 107 days outside its complaint timescales. This is fault.
87. This fault caused Ms X avoidable distress, frustration and inconvenience.

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Agreed action

88. Within one month of the Ombudsman’s final decision the Council should:
• Provide a refund of the full costs of Ms X’s scaffolding from 17 September 2019 to 11 June 2020 and from 22 September 2020 to 16 October 2020 on receipt of invoices to prove the costs.
• Provide Ms X with an apology and a payment of £250 for the avoidable inconvenience, distress and frustration caused through the Council’s delay in handling her retrospective planning application and her complaint.

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Final decision

89. There was fault leading to injustice. Since the Council accepted my recommendations, I have completed my investigation as I consider that a suitable remedy.

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Investigator's decision on behalf of the Ombudsman