Summary: Mr F complained the Council carried out inadequate inspections of building work completed by his contractor and therefore failed to identify non-compliance with building regulations. We do not find the Council at fault for its inspections. However, we do find it at fault for poor complaint handling. This caused Mr F unnecessary time and trouble, which we consider an injustice. The Council agreed to apologise to Mr F. We considered this provided a fair remedy to the complaint, taking account also of an earlier commitment the Council gave not to charge Mr F for additional building inspections required.

The complaint

1. Mr F complained the Council:

• undertook inadequate inspections of an extension under construction at his home; and
• delayed in replying to, and then failed to provide a satisfactory reply, to his complaint about its actions.

2. Mr F says as a result the Council failed to identify sooner defective building work on the extension which did not meet building regulation standards. These defects have cost tens of thousands of pounds to put right. In addition, Mr F says the Council’s delay in answering his complaint hampered his efforts to get redress from the builder who undertook the defective work.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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 significant injustice, or that could cause injustice to others in the future 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 considered evidence provided by Mr F and the Council as well as relevant law, policy and guidance.
7. I gave Mr F and the Council chance to comment on a draft version of this decision statement. I considered any comments and further evidence they provided in response, before issuing this final decision.

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What I found

Building Control and Building Regulations

8. Councils have an important role in ensuring buildings are safe for people to use. Their duty is to protect the public, rather than the interests of private individuals. They have extensive powers which include checking building works comply with building regulations.
9. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners must follow and consider. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
10. Councils can grant building regulation approval when acting as building control authorities. They employ building inspectors to carry out this work.
11. There are two ways a building owner can get building regulations approval from a council. These are:

• by submitting a full plans application. The owner or their agent presents plans. The council checks the plans comply with building regulations; or
• by submitting a building notice application. The owner or their agent informs the council of their intent to begin building work. An inspector will visit the site at various stages during the build, to check compliance with building regulations.

12. The Council says that key stage inspections under a building notice approval, for a building extension, typically include:

• pre-commencement;
• excavation for foundations;
• storm and foul drainage;
• sub-structure up to damp proof course level;
• ground floor preparation;
• super-structure above floor level;
• roof structure;
• steel beam works;
• pre-plaster to check electrics and plumbing;
• pre-completion;
• completion.

13. 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.
14. Councils can make charges for their building control service. The Building (Local Authority Charges) Regulations 2010 set out how councils should set their charges. Regulation 11 allows councils to levy more charges if “the amount of work required of an officer of a local authority is more than that which was estimated”.

Background

15. Mr F owns a property in the Council’s area, which he has extended on its southern, northern and western aspects. In September 2021 Mr F’s builder submitted a Building Notice application. The form identified Mr F as the applicant and the builder as his agent.
16. The Council carried out three key stage inspections at the site. In August and November 2022, it inspected works associated with the foundations of the build. Mr B notes the November 2022 inspection notes refer only to the extension on the north and western side of the building. They do not refer to the southern extension which he says had advanced to construction of the side walls.
17. Next, in February 2023, a Building Inspector inspected roof trusses. He identified these as “standard fink trusses”. Mr F says this was wrong as the trusses were scissor trusses. The Inspector recorded satisfaction with the work so far, and that it could continue. Their notes do not say if they noted the builder had failed to fit lateral restraint straps to the roof.
18. In May 2023 the Building Inspector attended at Mr F’s request, to inspect the ground floor preparations. The Inspector arranged for Mr F’s builder to be present also. Mr F says his builder had not allowed enough space to fit underfloor heating and the slab levels were at different heights. The Building Inspector recorded having discussion “to allow a consistent floor to be achieved” and that work on the build could continue.
19. By July 2023 the builder had left the job. Mr F contacted the Council to say he had re-laid the floor. Around the same time, he sought technical advice from a surveyor. They identified multiple defects with the build.
20. In August 2023 Mr F contacted the Council asking for it to visit the site again concerned about these defects. A manager from the Council Building Control service attended with a different Inspector. The manager’s notes of the visit identified “concerns” with the build. They went on to list these concerns. I note the concerns included the “roof design with new trusses […]”. They said “design details are required” and noted concern the builder had not fitted lateral restraint straps.
21. A further site visit followed in November 2023. Here the service manager said that discussion focused on “moving forward” to ensure compliance and for remedial work to complete. At this meeting the Council said that it would not charge Mr F any further fees for inspections. The Council says that since August 2023 it has carried out sixteen further “inspections / telephone calls” and that “ordinarily additional fees would be charged for these interactions”.

Mr F’s complaint

22. Mr F first complained to the Council in September 2023. His complaint was that:

• its Building Inspector had wrongly asked him to “compromise” when he raised concerns about the floor levels laid by his builder at the May 2023 inspection;
• the same Inspector had failed to identify the multiple defects with the building work identified by Mr F’s surveyor and at the August 2023 site visit;
• the Council had failed to confirm in writing whether the concerns identified at the August 2023 site visit meant the building work failed to comply with building regulations.

23. In November 2023 Mr F made a second complaint as the Council had not answered his complaint made in September 2023.
24. In December 2023 Mr F made a third complaint. He had chased progress on his earlier complaints and the Council told him it had closed both cases. Mr F complained he had not had a reply to either of his earlier complaints before the Council took this action.
25. In January 2024 Mr F contacted this office asking us to investigate. We contacted the Council and invited it to respond to the complaint. It sent him a response straight away. This said:

• the August 2023 site visit had identified issues with the “quality of works” and the Council had made a “detailed list” of what those were;
• the site visit had also discussed that Mr F would need a surveyor’s report if he wanted to seek redress against his builder;
• that a further meeting took place in November 2023 to meet a new builder instructed by Mr F; further inspection had taken place since;
• that where the Council received a Building Notice it would undertake key stage inspections of the build;
• but it was for the homeowner or the Building Notice applicant to request those; and
• that it had no responsibility to give design or technical advice.

26. Mr F was unhappy with this reply and asked to escalate his complaint. In May 2024 he contacted us again as he had not received a reply.
27. Before the end of the month, the Council gave a brief further reply to Mr F’s complaint saying his builder had made the Building Notice application. So, it could not provide him information as he was not the applicant.
28. When Mr F pointed out this was wrong, the Council sent a third reply to his complaint at the start of July 2024. It apologised the letter sent in May 2024 was wrong, recognising Mr F as the applicant. But it offered no further comments on the complaint.

My findings

The Building Control Inspections

29. Where an applicant submits a Building Notice, the Council will expect to undertake key stage inspections during the build. The applicant here was Mr F. Although in practice Mr F trusted his contracted builder as his agent, to contact the Council and liaise over the required inspections.
30. The law requires the applicant (or their agent) to tell the Council when work commences on a build and completes. It does mandate they must also tell the Council of inspections at key stages in between. The Council has explained at what stages of a house extension build it expects to carry out inspections (see paragraph 12). In reply to Mr F’s complaint and my enquiries, it said it was then the applicant’s responsibility (or their agent), to request those inspections.
31. I considered how the applicant was to know this. The Council provided a policy document to Mr F which said that at a first inspection the Council would “discuss the stages of the build that we would like to inspect”. While on its website the Council provides a link to a ‘Frequently Asked Questions’ page on the LABC website (Local Authority Building Control - a body that represents all local authority building control teams in England and Wales). This says the Council “will inform you what stages of the work need to be inspected”.
32. Further, until at least until September 2024 a leaflet could be downloaded from the Council’s website called “A Guide to Extending Your Home”. The leaflet had the logos of both the Council and a neighbouring authority. It also contained the LABC (Local Authority Building Control) logo. It said that after submitting a building notice: “one of our surveyors will meet with your builder to discuss your intentions, to agree how the work should be carried out, agree when the work will need to be inspected and to establish whether any further information will be required”.
33. The Council told me it was not responsible for the leaflet’s publication or its content. It identified the publisher as a private company working with the LABC in 2017. Consequently, I accepted the Council may not have written the leaflet. However, I considered it must have been involved at some point in its production. There was no other viable explanation for how it would otherwise appear with the Council logo prominent and with a link via the building control pages of its website.
34. All the evidence above led me to find therefore the Council needed to agree at the outset with Mr F or his builder an inspection schedule. There was no evidence it had done so here. That was a potential fault.
35. Next, I needed to consider the impact of this potential fault. I noted that before the builder left the site, there was no evidence they had asked the Council to inspect the extension’s storm or foul drainage, construction up to damp proof course level or the cavity insultation in the walls. Later, both the Council and Mr F’s surveyor identified problems with these parts of the construction. I understood from Mr F that work on these matters had progressed in both February 2023 and May 2023 when the Council’s Building Inspector attended. So, it seemed likely there had been time to inspect these parts of the build at an earlier date.
36. But I did not consider I could say the fault those inspections did not happen lay with the Council’s failure to set out an inspection schedule. For even if the Council had set out clearly the inspections it would want to undertake, the onus for requesting those inspections would still have rested with the builder. Even though there was no evidence to show the Council had explained this, the builder in this case was local, experienced and known to the Building Inspector. I considered on balance it was not likely therefore, they did not know of the key stage inspections required. For that reason, I did not consider any injustice arose from the Council’s failure to agree an inspection schedule or to record this.
37. Mr F considered the Council could in any event have inspected these matters before August 2023, without waiting for his builder to request an inspection. He pointed out, correctly, that councils have enforcement powers to ensure buildings comply with building regulations. So even if the onus is on the applicant to request key stage inspections, there is nothing in law that prevents the Council carrying out unannounced inspections. The Council’s website also says this. It says the Council may require an inspection if it misses a key stage inspection and the applicant has later covered over that work.
38. Taking account of this, I considered it would have been good practice for the Council to have pointed out the need to carry out further key stage inspections if it noted building work on site had advanced, having arrived on site to carry out an inspection of another matter. But I could not say in February 2023 this set of circumstances applied. In part that was because the Building Inspector’s notes were brief. So, for example, it was not clear what account they took in November 2022 of the construction of the southern extension. And at the same time there was no clear evidence showing all the building work listed in paragraph 35 had completed. This was unsatisfactory, but without clearer records I could not say it was fault.
39. I understood Mr F’s concern the February 2023 inspection of the roof trusses did not identify issues with their fitting or design, later identified at the August 2023 site visit. I understood why Mr F drew attention to the Inspector’s mistake in specifying the type of truss. But I was not persuaded this was a significant error, as opposed to a simple mistake. It was potentially more significant the Inspector did not identify the missing lateral straps, as this matter went to the safety and viability of the build. However, I did not find clear evidence the Inspector missed their absence. The Inspector noted the builder should “carry on” with the building works following their inspection, a phrase I considered open to interpretation. It could have meant the builder could “carry on” without more work on the roof structure. Or it could have meant the builder should “carry on” to complete the roof structure, including fitting any lateral straps required. I could not say therefore, the flaws later identified with the roof construction were present seven months earlier.
40. But even if the flaws in the roof structure were clear in February 2023 (or those other defects later identified), I also had to give weight to it being the responsibility of Mr F’s builder, not the Council, to ensure all their work met with building regulations. However frustrating Mr B found it that failures to comply with building regulations were not identified sooner, caselaw made clear the Council was not liable for the mistakes of his builder.
41. I could also find no grounds to criticise the floor inspection which took place in May 2023. Mr F said the Inspector failed to provide clear advice about defects in the floor construction. I had insufficient evidence to make this finding based on the case notes. However, even if I accepted this was so, Mr F’s dissatisfaction with the flooring construction led to the breakdown of his relationship with his builder. Mr F then took matters into his own hands and began working on the floor himself. Therefore, even if the Council had been at fault here, Mr F suffered no injustice. Because the outcome would have been the same, with Mr F having the floor re-laid.

The Council’s complaint handling

42. I considered there were several failings with the Council’s complaint handling which led me to find fault.
43. First, it delayed in replying to Mr F’s complaint. Its published corporate complaint procedure says it will answer complaints in 30 working days at stage one of its procedure. But it did not meet that timescale which led Mr F to make a second complaint.
44. Second, it failed to offer a substantive reply to Mr F even after he chased his complaint and made a third complaint in December 2023. The reason for this was the Building Control service understood the meetings it had with Mr F from August 2023 removed the need for a reply (and contemporaneous emails showed this was its understanding). I understood the meetings were amicable and productive. They agreed a way forward for Mr F to continue his build and understand the concerns of the building control. The Council had also made its offer not to charge for any further inspections.
45. However, there was no note those meetings went over the concerns Mr F raised in his complaint. Further, there was no suggestion Mr F wanted to withdraw his complaint or said it no longer needed a reply. So, I was unclear why the Council would think the complaint satisfied despite the apparent success of those meetings. And even if it did think the meetings had resolved the complaint, it should have written to Mr F to explain this and clarify it would not write to him further.
46. Third, when the Council did offer a substantive reply in January 2024 it did not comment on the inspection in May 2023. Nor did it comment on Mr F’s questioning why its earlier inspection had failed to spot the multiple problems with the build identified in August 2023. Nor did it comment directly on whether those problems meant the building failed to comply with building regulations. So, while the letter contained information helpful to Mr F in understanding the building control regime, it did not answer his complaint.
47. Fourth, Mr F also experienced delay receiving a second reply when he escalated his complaint. Then, when the Council replied, it failed to answer the substance of his complaint, providing wrong information about who was the building notice applicant.
48. Fifth, the third reply to Mr F only corrected the erroneous information in the second reply. It too offered nothing of substance in response to Mr F’s complaint.
49. This combination of delay and poor responses caused Mr F injustice. Whenever anyone complains, they use some time and effort in doing so. But they should not have to use unnecessary time and effort doing so. For example, in chasing the Council to reply or receiving an answer to a complaint, that does not address the matters raised which will inevitably give rise to more correspondence. We consider when this happens the injustice caused is that of unnecessary time and trouble.
50. However, I did not consider Mr F’s injustice extended to an inability to hold his builder to account for their work. Mr F had a record of what the Council had inspected and approved during the work, as well as understanding of its concerns. He also had his own surveyor’s report highlighting problems with the build. I understood he would have found it helpful to also have something in writing from the Council saying ‘x’ or ‘y’ did not comply with Building Regulations at a specific date. But the Council was not under an obligation to help him as a private citizen in dispute with his builder. So, I could not say it was at fault for not being more specific when detailing its concerns following the August 2023 site visit.
51. Next, I considered what action the Council should take to remedy Mr F’s injustice identified in paragraph 49. My starting position, taking account of the Ombudsman’s guidance on remedies, was to consider that Mr F should receive a symbolic payment to recognise his injustice. However, I considered any potential award offset by the Council’s decision to waive fees. The Council did not characterise this action as a “remedy” (as it initially defended its actions and did not agree it was at fault). But I still needed to consider the implication of this gesture for anything I might recommend.
52. I was satisfied the Council could potentially have charged more fees to Mr F. First, because the law allows councils to charge more fees where the work to inspect a site is more than envisaged.
53. Second, I considered the facts of this case would allow it to do so. The Council described that typically for a build like Mr F’s it would expect to visit the site around 12 times. But the building issues identified by Mr F’s surveyor and the Council around August 2023 led to more contacts between Mr F (and / or his new builder / surveyor) and the Council, in excess of this number.
54. Third, the Council did say exactly what it could charge for this extra work. However, I understood from its website that it’s fee would be around £150 an hour (inclusive of VAT). The likely cost therefore of between just two and three hours of extra work to inspect Mr F’s build would exceed any symbolic payment recommendation I might have made (as this would have been around £300).
55. I decided therefore the Council’s gesture offset any symbolic payment I could recommend. But I still expected it to apologise to Mr F, which it agreed to do.

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Agreed Action

56. Within 20 working days of a decision on this complaint, the Council will:

• apologise to Mr F accepting the findings of this investigation.

57. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology recommended above.
58. The Council will also provide us with evidence it has complied with the above action.

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Final Decision

59. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mr F. The Council accepted this finding and agreed to take action that I considered would remedy that injustice. So, I could complete my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman