Summary: Mr X complains about the way the Council removed a dangerous wall at his property and charged him the costs of the work. We find no evidence of fault in the way the Council dealt with the matter. So, we have completed our investigation.

The complaint

1. Mr X complains about the way the Council took action to deal with a wall at his property. Mr X says the Council:
• Took down parts of the wall that were not dangerous without any reason including parts that were not adjacent to the public highway.
• Failed to give him warning of the work it would be doing.
• Billed him for the costs and started taking recovery action against him.
• Did not respond to his complaint fully about interest being charged.
2. Mr X says he has been caused distress and economic loss.

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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 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)
4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A) and 25(7), 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(1), as amended)

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How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Law and Guidance

8. Under Section 78 of the Building Act 1984 (Dangerous building- emergency measures) the Council can take immediate action to remove a building or structure if it considers it is in dangerous state and a risk to public safety. The Council does not require the owner’s permission or consent to discharge this function of the Building Act 1984. But it does try to give reasonable notice of the intention to carry out the emergency works to the owner/occupier of the building. The Council can recover the cost of the works from the owner/occupier.

What happened in this case

9. What follows is summary of key events. It does not include all the information I reviewed as part of my investigation.
10. The Council received a report that a wall at Mr X’s property was in a dangerous condition and near to collapse. A Building Control officer visited Mr X’s property the same day to ensure the wall did not affect public safety. The officer spoke to Mr X on site and inspected the wall. The officer considered the wall was dangerous as it was adjacent to a public highway and told Mr X part of it needed to be removed immediately. The officer taped off the relevant section of the wall
11. Mr X confirmed he did not have the resources to take any immediate action, so the Council arranged for its contractors to carry out the work to maintain the safety of the public. The officer posted a notice through Mr X’s door advising of the action it was taking.
12. The Council’s contractors carried out the work. The Council sent Mr X a further letter explaining the action it had taken and the contractors had needed to remove more of the wall than had been initially assessed to make it safe. It advised Mr X he would be liable for the costs of the work.
13. Mr X complained to the Council about the action it had taken, the removal of more of the wall than he expected and the costs. Mr X considered the Council had trespassed to remove part of the wall on his property which was not adjacent to the public highway. Mr X later said he was registering a claim against the Council for the costs and asked the Council to suspend any interest charges on his account while the matter was in dispute.

The Council’s response to Mr X’s complaint

14. The Council confirmed to Mr X it could take the action to remove the dangerous sections of his wall and did not need his consent or permission as owner to carry out work. But an officer had verbally notified Mr X of the action to be taken. The Council said it would usually only carry out the least amount of work, including demolition, it determines is necessary to make a building safe. The Council told its contractor to take down the least amount of wall. But it works with its contractor on the understanding that any remaining wall after demolition must be left secure and stable, so it does not leave a danger to the public.
15. The Council confirms the extent of work needed to make a dangerous structure safe can be difficult to accurately establish on a site visit. Once the contractor started to remove the dangerous brickwork it found that further areas of the wall were unsafe. And so required more demolition to make the remaining wall structure safe and sound. The Council said it was unavoidable and Mr X would have needed to do the same amount of work if he had used his own contractors to do the work.
16. The Council says the alternative to it carrying out the work would have been to arrange a temporary footpath and public highway closure with suitable barriers to prevent access. But did not consider this would have been in Mr X’s best interest as it would have made additional costs for him. So, considered removing the dangerous wall the most reasonable course of action. The Council did not consider it appropriate to consult Mr X on the removal of more of the wall once works started. This was due to the alternative being the Council having to temporarily close the public highway to protect the remaining defective wall. This would have created extra costs for Mr X who had already said he did not have the resources to do the work. And Mr X would have been responsible for increased costs of the work carried out so far, the temporary closure of the public highway and any other subsequent costs of demolishing the wall.
17. The Council confirmed the site plan of the wall and Mr X’s property showed the defective wall was adjacent to a public highway and part of it was a private communal highway shared by several residents including Mr X. The Council did not have any photographs to show works had been done on the private residential highway. But it accepted Mr X’s photographic evidence that masonry had been removed to the communal section of the private highway. The Council considered the photographs showed the wall in a deteriorated and dangerous condition. It bordered onto the public highway on one side and a communal private highway on the other, so it presented a safety risk to the public. The Council considered it was justified in removing it.
18. The Council was satisfied the emergency work was both necessary and executed correctly in line with section 78 of the Building Act 1984.
19. The Council says Mr X asked for the interest charge on his debt to be withdrawn while his complaint remained unresolved and said he was registering a claim against the Council. The Council advised Mr X any financial claims were outside the scope of the complaints process, so he needed to contact its legal service to register a claim. Because of this the Council considered the request to withdraw interest was part of the claim so did not respond to Mr X on this point during the complaint procedure. The Council has apologised if it misunderstood this part of Mr X’s complaint.
20. The Council confirmed it generated a standard debt recovery invoice to Mr X for the works which remain unpaid. The interest referred to on the back of the invoice relates to commercial debts. But the Council does not charge interest directly and it has not been applied to Mr X’s debt. The invoice has now been cancelled and raised as a land charge on Mr X’s property instead. The Council says it will only ever apply interest on the debt either when it is paid or if the property is to be sold without the debt being paid. If the Council decides to seek payment of the interest charges it will generate a separate invoice for the interest charge calculated on the debt.

My assessment

21. The Council has explained why it considered it necessary to remove part of Mr X’s wall because it was assessed to be in a dangerous condition and a danger to public safety. The Council did tell Mr X although there was no requirement for it to do so. Unfortunately, once work started the amount of wall needing to be demolished was greater than thought to ensure the remaining wall was stable and secure. I appreciate this was disappointing for Mr X and he disagrees with the amount of work done and the costs. But the decision to demolish the wall is a matter of the officers’ professional judgement. We cannot question the merits of the decision itself without evidence of fault in the way it was made. I do not consider there is fault in this case.
22. This is because the officer considered the information provided and visited the site. The office assessed the wall as dangerous to public safety. This is a decision the Council is entitled to make. There is no evidence of fault in the way the Council decided the wall needed to be demolished. The full extent of the dangerous condition of the wall was only realised during the works so the Council through its contractor was required to remove more of the wall. This included a part of the wall on the private communal highway as it was adjacent to a public highway. I appreciate this was distressing to Mr X, but it is action the Council is allowed to take under its legal duties according to section 78 of the Building Act 1984. There is therefore no evidence of fault by the Council.
23. The Council has explained it is able to charge Mr X for the costs of the works under section 78 of the Building Act 1984. It has apologised as it was unclear whether it should have responded to Mr X’s request to withdraw interest. But has confirmed it has yet to charge Mr X any interest. If it decides to charge interest once Mr X either pays the debt or sells his property and the land charge becomes payable, it is matter he will have to raise with the Council then. Or Mr X will need to dispute the matter should he decide to continue with a financial claim against the Council.

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Decision

24. I find no fault by the Council.

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Investigator's decision on behalf of the Ombudsman