Summary: Mr X complained the Council’s building control service failed to properly inspect the drains of his house before he bought it. He said that because of this failure, his drains were not connected to the main sewer, causing significant impacts on his amenities, costs and disturbance. We found fault that will be remedied by the Council reviewing its practices and procedures to help avoid recurrence of the fault.

The complaint

1. Mr X complained the Council’s Building Control Officer (BCO) failed to check the sewer that serves his house was properly connected to the main drain before giving building regulations approval.
2. Mr X said he bought and moved into his new house and after several months, undrained sewage had backed up the drain and flowed into his garden.
3. The Council accepted it was at fault and offered a small sum in compensation, but Mr X considers this inadequate for the disruption, trauma, distress, and significant impact on his amenities from sewage.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and discussed it with a manager of the Council’s Building Control service.
7. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered comments received before making a final decision.

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What I found

Building regulations law and guidance

8. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
9. Building regulations approval can be granted by councils acting as building control authorities, or by independent ‘approved’ inspectors. Councils employ building control officers (BCOs) to carry out this work.
10. There are two ways a building owner can get building regulations approval. These are:
• Full plans application. The owner or their agent submits plans. The plans are checked for compliance with building regulations.
• Building notice application. The owner or their agent informs the Council or approved inspector of their intention to begin building work. The BCO/approved inspector will visit the site at various stages of the work to check compliance with building regulations.
11. There have been court challenges where owners of buildings have sought to hold council building control authorities liable for defects in building work they have inspected. The courts have decided that council building control authorities are not liable to ensure compliance with building regulations – the duty to comply with regulations lies 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.

What happened

12. Several years ago, a builder sought building regulation approval for the development of houses, one of which would eventually be bought by Mr X.
13. The Council said that its records show its BCO inspected the site and made a note on its computer record database that a further visit was needed to ensure the drains were connected to the main sewer. There is no further record to show whether a visit had taken place or, if a visit had happened, what was found.
14. A manager for the Building Control service told me that there should be a record and there probably should also have been a test to show the sewer was properly connected, but there is no evidence that either of these things happened before the Council gave building regulations approval for the work.
15. The manager said that in addition to its computer record keeping database, BCOs use a calendar on separate software to record site visit dates and other details. The manager said that if details from the calendar and/or site visit notes are not copied across to its record keeping database, it is possible that important information could be lost.
16. After Mr X moved into the house and began using its facilities, it was discovered that the drain for the house had not been connected to the mains sewer. Foul water including human waste backed up the drain, causing obnoxious odours and outflows of waste.
17. Mr X said it took over two years for the problem to be resolved, with long discussions between the insurers and the builders, excavations, removal of floors, and cost and disruption from redecorating and refurnishing.
18. Mr X complained to the Council, which admitted its error, apologised and offered compensation. Mr X feels the amount offered does not go close to remedying what has happened. Mr X said that if the Council had done its job properly in the first place, none of this would have happened.

My findings

19. The BCO kept a record to say that a further visit was necessary to check the drain connection to the mains sewer. There is no evidence this happened. This is fault. The Council has already offered a remedy for the injustice caused to Mr X.
20. But for the fault, the Council would have kept a proper record and it is likely it would have also carried out tests to check the connection.
21. I agree that but for the fault I have found, Mr X would not have been caused inconvenience and disruption he has described. However, while the Council was at fault, this does not mean that it is responsible for what has happened. This is because of the way that council building control responsibilities are framed in law.
22. The purpose of the Council’s power is to protect the public generally, not the private rights and interests of individual builders and landowners. Responsibility to comply with the building regulations, lies with these private individuals, not with the Council. When things do go wrong, responsibility and liability for the costs and losses that follow are a private matter which may eventually be determined by civil courts.
23. For these reasons, I will not recommend any further remedy for the personal injustice caused to Mr X. However, I made recommendations to avoid recurrence of similar faults in the future, and the Council has agreed to carry them out.

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Agreed action

24. To avoid recurrence of the fault I have found, the Council has agreed to:
1. review its practice, procedures, record keeping and use of document management systems to avoid problems identified in this report occurring again; and
2. report the findings of its review and any changes it makes as a result to the Ombudsman and to the relevant Council scrutiny committee.
25. The Council will provide us with evidence it has complied with the above actions within three months from the date of our final decision.

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Final decision

26. I found fault, which caused injustice to Mr X. The Council has agreed to take the action I recommended to avoid recurrence of the fault, and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman