Summary: The complainant (Mr X) said the Council failed by changing its position on the use of its powers to act in relation to the retaining wall between his and his neighbour’s (Mr Y) properties. Mr X considered the Council discriminated against him. We find fault in the process leading to the Council’s decision to stop its involvement. This fault caused Mr X injustice. The Council agreed to apologise to Mr X in writing, to make a payment to recognise his distress and to introduce a policy detailing the Council’s approach to its use of powers towards dangerous structures. We do not find fault in the way the Council took account of its duties under the Equality Act 2010.

The complaint

1. Mr X complains about the Council’s refusal to continue its involvement in ensuring safety of the retaining wall situated between his property and his neighbour’s. Three years ago the Council told Mr Y he should take proper action to make the structure safe otherwise it would consider serving a notice requiring him to undertake repairs. After the wall had collapsed Mr Y undertook some works aimed at making the wall safe but, in Mr X’s view, they were inadequate and the wall still poses danger to Mr X and his property. The Council failed to monitor the state of the wall despite its earlier involvement.
2. Mr X also claims unfair treatment from the Council, which acted to assist Mr Y when it was suspected the works carried out on Mr X’s property might have affected the state of the wall and when the wall was thought to be owned by him. Now the ownership of Mr Y had been established, the Council stopped its assistance.

Back to top

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. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)

Back to top

How I considered this complaint

7. I spoke to Mr X and reviewed all the documents provided by him and the Council.
8. I reviewed the information from the Council’s website about the Council’s approach to dangerous structures.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legal and administrative background

Building Act 1984

10. If it appears to a local authority that a building or structure, or part of a building or structure, is in such a condition as to be dangerous, the authority may apply to a magistrates’ court and the court may make an order requiring the owner to:
• Execute works necessary to obviate the danger; or
• Demolish the building or structure and remove any rubbish resulting from the demolition.

(Building Act 1984 S.77 (1)(a))

Equality Act 2010

11. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
12. Race is one of the protected characteristics referred to in the Equality Act.
13. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

The Ombudsman’s ‘Principles of good administrative practice’

14. This document explains the standards expected from local authorities when they discharge their statutory functions or provide services. Among six principles of good administrative practice included in this guidance there are two relevant to this complaint
15. Being open and accountable:
• being open and clear about policies and procedures;
• stating the criteria for decision making and giving reasons for decisions;
• keeping proper records;
• taking responsibility for actions.
16. Acting fairly and proportionately:
• being impartial;
• treating people without unlawful discrimination or prejudice;
• dealing with people and issues objectively and consistently;
• ensuring decisions and actions are proportionate, appropriate and fair.

Key facts

17. Mr X and Mr Y are the owners of the bordering properties, with a retaining wall between them.
18. In November 2018 the Council’s planning enforcement team received a complaint the building works carried out by Mr X in his back garden might have affected his fence. The Council asked Mr X to seek advice from a fully chartered structural engineer to clarify what should be done as the initial retaining wall design did not appear satisfactory.
19. The Council contacted Mr X advising it might issue a notice under Building Act 1984 section 77 (S.77 Notice) as the wall might be considered a dangerous structure. The Council asked Mr X to provide an appraisal of the wall design before any further works take place.
20. In the beginning of December 2018 Mr X sent structural calculations and drawings following which the Council gained advice from the external structural engineer. He found out the building works did not have any impact on the retaining wall or Mr Y’s fence.
21. The engineer raised concerns, however, the boundary wall continued to deteriorate. The Council confirmed this during its site visit in May 2019.
22. At the same time the Council sent letters to the owners of both properties with the retaining wall between them. As Mr Y was found to be the owner of the retaining wall, the Council told him to undertake the works otherwise it would consider issuing S.77 Notice.
23. Following this correspondence Mr Y asked Mr X to allow him access to the wall from the side of Mr X’s property as the cost of work, if carried out from his side, would be prohibitive. Concerned about the possible impact of the wall collapsing on his property and safety of his family, Mr X agreed, under certain conditions, to give Mr Y access to the wall from his side.
24. Once the works started, the original wall collapsed. The supporting structure put in place has never been properly finished.
25. After inspecting the site the Council decided there was no reason for its further involvement.
26. In the beginning of October 2020 Mr Y asked the Council to remove S.77 Notice from his property.
27. In response to this correspondence the Council explained the letter sent in May 2019 to Mr Y was an advisory letter rather than a S.77 Notice.
28. The Council sent the same message to Mr X’s representative at the end of January 2021. It confirmed no notice was served on Mr Y. The Council also explained it would not get involved as this was a civil matter between two neighbouring properties rather than a concern for the Building Control team.

Complaint

29. In the beginning of December 2021 Mr X complained about the Council’s lack of action towards the retaining wall which posed danger to Mr X’s family and his property. He based his objections to the Council’s stance of non-involvement on:
• The change in the Council’s position on the danger posed by the wall;
• The Council setting the extent of repair works and then leaving the matter despite the works not being finished;
• The Council’s earlier involvement with the retaining wall through the site visits and letters sent to the land owners;
• The Council’s failure to act following the statement in the advisory letter sent to Mr Y in May 2019. The letter told Mr Y on the possibility the Council would carry out necessary works and charge the cost from Mr Y;
30. A few days later the Council re-iterated its position the state of the wall was a private legal matter between two property owners and would not fall under the remit of the Council’s Building Control services as does not affect members of the public. The officer who dealt with the matter in the past had now left the Council so could not be reached to provide reasons for the Council’s decision to get involved in the past.
31. In March 2022 Mr X expressed his dissatisfaction with the Council’s response to his complaint and specifically:
• He failed to understand how the Council could now claim it should not deal with the matter, when it had been involved in the past;
• Mr X alleged a different approach from the Council when the works carried out on his property were suspected to have caused damage to the wall. At the time the Council actively supported Mr Y in exploring the reasons for the danger posed by the wall;
• Even immediately after discovering the building works on Mr X’s property did not contribute to the retaining wall’s damage, the Council continued its involvement but withdrew before the repair works; were finished;
• Mr X did not consider satisfactory the Council’s claim of not being able to provide its reasons for the earlier involvement because the officer who had dealt with the issue at the time had now left. The Council should, in Mr X’s view, keep records of site visits, letters and emails and case notes.
32. In April 2022 the Council sent the final response to Mr X’s complaint. It explained again the officer who dealt with the retaining wall in the past had left the Council. Thus there was no way of finding out why he decided the Council should have been involved in the matter between two property owners.

Analysis

Late complaint

33. I decided to investigate this complaint as the Council’s fault, if found, and injustice caused to Mr X by any potential Council’s faults would be continuing.
34. There are good reasons for extending my investigation on the events which happened more than 12 months before Mr X complained to us. Without doing this it would not be possible to find out whether the Council complied with the law and the principles of good administrative practice when dealing with the issues complained about. There is enough evidence available to make my findings.

Decision on the use of Section 77 powers

35. The law leaves it in the councils’ discretion to decide whether:
• A building or structure, or part of a building or structure, is in such condition to be dangerous; and if so
• It should apply to a magistrates’ court.
36. I cannot, therefore, criticise the Council for deciding not to use its powers to assist with the retaining wall between Mr X’s and Mr Y’s properties.

Process leading to the Council’s decision

37. I found, however, fault in the Council’s processes leading to the change in its position on the use of powers under S.77.
38. The Council failed by not having a policy setting the criteria for the use of powers under Building Act 1984 S.77.
• In response to our enquiries the Council told us of the absence of a policy on dangerous structures. Within the same correspondence the Council explained the legislation applies to dangerous conditions adversely affecting the ‘passing’ public rather than private properties owners. Mr X was unaware of this criterion as there is no document which would explain when the Council gets involved;
• Absence of the Council’s policy explaining when it uses its powers and what criteria it applies is contrary to the administrative principles of openness and accountability. With no point of reference, the change in the Council’s position caused Mr X confusion and delayed any alternative action he might have considered.
39. The Council failed to keep records, which is fault.
• When challenged by Mr X about the reasons for the Council’s withdrawal from dealing with the retaining wall, the Council quoted the law supporting its decision but could not explain why it had previously been involved. The Council said the staffing changes meant it was not possible to provide justification for the previous involvement;
• The reliance on individual members of staff without keeping satisfactory records is contrary to the administrative principle of openness and accountability. With no record of the Council’s decision-making process across the last few years it is not possible to settle whether the Council has acted fairly and proportionately.
40. The Council’s fault caused Mr X injustice:
• Distress caused by what Mr X seen as unexplained failure in using the Council’s powers;
• Delays with undertaking any actions aimed at securing the retaining wall caused by Mr X’s expectations, raised by the Council’s previous actions, the Council would use its S.77 powers;
• Confusion with the process.

Equality considerations

41. Although we cannot decide whether discrimination occurred, we can look at the way the Council took account of its duties under the Equality Act.
42. There is no evidence the Council acted towards Mr X with a bias:
• Mr X claimed the Council was using it S.77 powers when works on Mr X’s property were suspected to be causing damage and Mr X was believed to be the owner of the wall. The evidence gathered during this investigation, however, suggests that in May 2019 the Council served an advisory letter on Mr Y, compelling him to undertake works strengthening the structure. This shows the Council did not stop its involvement immediately when the responsibility moved from Mr X to Mr Y.
• All the cases in which the Council issued S.77 Notice and S.77 Notice advisory letter since the beginning of May 2019 until now have been for the dangerous structures either next to the public highway or which in some way presented a risk to the public. Thus there is no reason to believe the Council acted with bias when it decided not to use its S.77 powers in case of the retaining wall between two private properties.

Back to top

Agreed action

43. To remedy the injustice caused by the faults identified, we recommend the Council within four weeks of my final decision completes the following:
• Send a written apology to Mr X;
• Pay Mr X £300 to recognise his distress.
44. We also recommend the Council within six months of the final decision completes the following:
• Draft a policy or a document with the details on its use of powers under Building Act 1984 Section 77 and make it available for its residents by publishing it on the Council’s website;
• Remind its staff working in the Building Control team of the need to keep robust records especially when making decisions on behalf of the Council. The Council will provide us with the anonymised list of staff who received a reminder.

Back to top

Final decision

45. I uphold part of Mr X’s complaint as I find fault in the process leading to the Council’s decision on the use of its powers towards dangerous structures. I do not find fault in the way the Council took account of its duties under the Equality Act 2010. The Council has accepted my recommendations and this investigation is now at an end.

Back to top

Investigator's decision on behalf of the Ombudsman