Summary: We will not investigate this complaint about the actions of a building control officer, or the Council’s handing of the complainant’s building control application. The actions of the officer in a private capacity do not amount to an administrative function of the Council, and there is insufficient evidence of fault in the way the Council handled the related building control application.

The complaint

1. Mr X complains he was given incorrect advice by a council building control officer about whether his development benefitted from permitted development rights.
2. In addition, Mr X says the Council’s building control department should also have highlighted the works were not permitted development when it was considering his building control application, particularly as the section on dormer windows in the ‘Residential extensions guidelines supplementary planning document’ (SPD) says:

“Planning Officers will work closely with Building Control Officers to achieve a design which is acceptable both in visual and construction terms.”

3. He says this has resulted in him incurring significant build costs to remedy the situation.

Back to top

The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. We cannot investigate complaints about actions which are not an administrative function of a council. (Local Government Act 1974, section 26(1) as amended).
7. We also cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
8. And it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

Back to top

How I considered this complaint

9. I considered:
• information provided by Mr X and the Council, which included their main complaint correspondence.
• the Planning Inspectorate’s decisions on Mr X’s planning appeals
• the Council’s SPD.
• the Ombudsman’s Assessment Code.

Back to top

My assessment

10. I sympathise with Mr X’s situation, but the Ombudsman will not investigate his complaint for the following reasons.
11. Despite what the officer may have told Mr X during their discussions about the services he could provide, I have seen nothing to suggest the officer was acting on behalf of the Council. Rather, the advice/services the officer provided appear to have been given in a private/personal capacity. As such, the restriction detailed in paragraph 6 above would apply to the part of the complaint about the officer’s actions, as it is not about an administrative function of the Council.
12. Furthermore, I consider there is insufficient evidence of fault in the way the Council handled Mr X’s subsequent building control application to justify starting an investigation into that part of the complaint. In reaching this view, I am mindful that:
• Planning and Building Control operate under entirely separate regulatory regimes. We would not normally expect an officer from one department to identify issues about compliance with the legislative requirements of another area, as this would be outside their realm of professional expertise.
• the SPD is a planning policy document providing additional guidance on what kinds of developments are likely to be acceptable in planning terms. The Council’s complaint response further explains that the guidelines relate to activity carried out by planning officers in determining planning applications, and not to the work of Building Control officers.
• Once the Council was made aware of the potential conflict of interest, the officer was removed from any involvement in the building control application.
13. And with reference to paragraph 7 above, as the law prevents us from investigating personnel matters, we cannot investigate any disciplinary enquiries the Council made into the actions of the officer.
14. Finally, ss we will not investigate the substantive issues at the heart of the complaint, it would not be a good use of our resources to pursue any concerns about the Council’s complaint process in isolation.

Back to top

Final decision

15. We will not investigate Mr X’s complaint primarily because part of it does not relate to an administrative function of the Council, and there is insufficient evidence of fault in the way the Council handled the building control application.

Back to top

Investigator's decision on behalf of the Ombudsman