Summary: We found fault on Mr J’s complaint about the Council’s Building Control team’s decision that installed downpipes which deviated from approved plans complied with building regulations. It failed to show how and why it reached this decision. The agreed action remedies the injustice caused.

The complaint

1. Mr J complains that following the purchase of his newly built home in 2020, the Council failed to:
1. act on his reports of the builder’s fraudulent activities; and
2. properly inspect works before issuing a completion certificate which states building works were carried out in accordance with building regulations.
2. As a result, he has a list of works the builder needs to complete which is causing him stress, anxiety, and frustration, and will cost him financially.

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What I have and have not investigated

3. I have not investigated:

• complaint a) which includes the actions of Trading Standards. This is because the Consumer Rights Act 2015 does not give purchasers of properties the same protection as buying other items. In addition, allegations of this type of fraud are for the police to investigate; and
• any complaint about snagging works the developer failed to do. This is because Mr J had the option of pursuing them under the new build warranty. In addition, if this does not resolve the issues, he can take court proceedings for a breach of contract.

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The Ombudsman’s role and powers

4. 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)
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)

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How I considered this complaint

6. I considered all the information Mr J sent as well as the Council’s response to my enquiries. Some of it had to remain confidential as it contained information about third parties. This means I cannot disclose or refer to it directly. I sent Mr J and the Council a copy of my draft decision. I considered their responses.

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What I found

7. Mr J bought his newly built house in December 2020 despite having concerns about the workmanship carried out by the developer. When he moved in, he contacted the developer about snagging (small defects or problems in a property after building works were completed). He claims the developer refused to do the items on his snagging list. These, for example, included: levelling up the drive paving; changing the colour of downpipes; dents in the garage door; changing the external door colour; installing missing roof windows.
8. In March 2022, Mr J contacted the Council’s Trading Standards and Building Control teams claiming the developer committed fraud by refusing to do the works.

Building Control

9. When Mr J bought his house, he had a new build warranty. A building or structural warranty is essentially an insurance policy for newly built homes. The warranty is taken out by the builder or developer. It aims to protect the buyer. It usually covers defects arising due to faults in the design, workmanship, or material which remain undiscovered at the time the property is completed. They usually last for ten years which is broken down as: defects insurance for the first two years; structural insurance for ten years from purchase.
10. He says the two-year cover expired in December 2022. Despite this, there is still a long list of snagging issues the developer refused to do.
11. The works which concern Mr J included guttering and downpipes. He notes what the developer installed on one elevation of his house is not the same as shown on approved plans. He argued Building Control should have identified this difference before issuing the completion certificate.
12. The Building Control team told Mr J his snagging concerns were outside the scope of building regulation approval. This means it could not take any further action. It explained a Building Control surveyor found no structural defects with the property. While the guttering is different to that shown on the approved drawing, the water is disposed of in a way which satisfies Part H of the building regulations. The Council did not provide evidence showing how it reached this decision or what it considered when it did.
13. Mr J wanted the Council to force the developer to do the works at no cost to him. He is unhappy with the Council’s response to his reports.
14. The Council told Mr J the function of Building Control was to check building work complied with building regulations. Building regulations are a set of standards intended to protect people's safety, health, and welfare in and around built environments. While regular visits are made to ensure works are progressing properly in terms of these regulations, those carrying out building works are responsible for complying with them. The role of building control is to ensure they do so.
15. It also explained poor workmanship was a matter for the developer and house purchaser to resolve. After moving in, defects are usually addressed under the new home warranty provider.
16. It accepted there was a slight delay responding to Mr J because the surveyor who inspected the property was on leave but, another team member responded instead.
17. Trading Standards also responded to Mr J. It explained buying a house does not come with the same statutory rights as other goods and services. Property is exempt from the Consumer Rights Act 2015 which would usually imply terms in to a contract for other goods about quality, for example, giving a purchaser the right to reject them and get a refund. It explained new homes are covered by a warranty. It advised him to check which warranty he had.

My findings

18. Most building work requires building regulation approval. Building regulations set out requirements and guidance builders and building owners are required to follow. Their purpose is to make sure buildings are safe for those using or living around them.
19. Building regulations approval can be granted by councils acting as building control authorities, or by independent ‘approved’ inspectors. Councils employ building control officers to carry out this work.
20. There have been court challenges where owners of buildings have sought to hold council building control authorities liable for defects in building work they inspected. The courts decided council building control authorities are not liable to ensure compliance with building regulations – the duty to comply with regulations rests with the building owner, who may be able to take legal action for the consequences of poor/non-compliant work against their contractor, architect, or builder.
21. I make the following findings:
1. The Council issued the completion certificate a month before Mr J bought the house.
2. Mr J had a contract with the developer when he bought his house.
3. This means he had no direct relationship with the Council about building control services because this was done during the developer’s ownership for the developer.
4. The Council said Building Control was satisfied that although the downpipes were not as shown on the approved plans, they met building regulations in terms of disposing rainwater. It failed to show how it reached this decision and what factors it took into account when it did. This is fault.
5. I consider this caused Mr J some injustice. This caused distress as he has the uncertainty of not knowing whether it was properly assessed against the requirements of the relevant building regulations.
6. I will not investigate any complaint Mr J has about the drainage of his drive. This is because even if there was fault by the Council, I am not satisfied there is any outstanding injustice to him. Mr J told me the supplier of the materials used for the drive carried out remedial works which resolved the issue at no cost to him.
7. I am satisfied Mr J’s snagging list is a matter for him to resolve with the developer. If this cannot be achieved, he will need to consider getting legal advice about taking the developer to court for breach of contract. These are not issues for the Council.

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Agreed action

22. I considered our guidance on remedies.
23. The Council agreed to do the following within four weeks of the final decision on this complaint:
1. Send Mr J an apology for failing to show how and why it reached its decision about installed downpipes complying with building regulations.
2. Arrange for a Building Control officer to inspect the installed downpipes and send a decision setting out the reasons why they do or do not comply with building regulations.
3. Remind Building Control officers of the need to show how decisions are reached when asked whether deviations from approved plans comply with building regulations.
4. Remind Building Control officers of the need to make and retain evidence of their decisions.
24. The Council should provide us with evidence it has complied with the above actions.

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Final decision

25. I found fault on Mr J’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman