The Ombudsman's final decision
Summary: X complained about how the Council dealt with matters relating to its Building Act powers. X believes the Council failed to act properly and this resulted in large financial losses and a personal injury. We did not investigate this complaint further, because the issues that were raised and the allegations made are more a matter for the courts than the Ombudsman.
The complaint
The person that complained to us will be referred to as X.
X complained about how the Council used its powers under the Building Control Act 1984 relating to unsafe buildings or structures.
X lives in a building that was defective, and the Council arranged for part of it to be shored up with scaffolding. The Council is now holding X and other residents liable for its costs.
X said the Council’s failures have caused: significant repair costs and large financial losses; a personal injury; difficulties for some residents who want to sell their properties; a fire escape being obstructed by scaffold poles.
The Ombudsman’s role and powers
We 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. We do not start or continue an investigation if we decide: there is not enough evidence of fault to justify investigating, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants, or there is another body better placed to consider this complaint, or there is no worthwhile outcome achievable by our investigation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I read the complaint and discussed it with X. I read the Council’s response to the complaint and discussed the case with a planning and building control service manager.
I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.
What I found
Council powers under the Building Act 1984 Building owners are responsible to ensure that their buildings are safe and do not become a danger to the public. Councils have power to act where buildings are unsafe and put the public at risk.
Councils may apply to the court for an order to require a building owner to take steps to make a dangerous building safe.
If the Council considers a building to be dangerous it may take immediate action itself to deal with the risk. Before acting, it should, if it is reasonably practicable to do so, give notice of its intention to the building owner.
Where the Council takes action to make a building safe, it can recover expenses from the owner that are reasonably incurred. The court may decide not to allow the Council to recover its expenses, if it determines it would have been reasonable to require the owner to take action to prevent the danger.
Background
X lives in a building that is divided into apartments. Part of the building was in danger of collapse and X wanted help finding a scaffold company to make the building safe. X contacted the Council and one of its Building Control Inspectors visited the site.
The Inspector arranged for a scaffold company to shore up the building, but later part of it did collapse. The Council placed a charge on the Land Registry for the cost of scaffolding.
X complained to the Council about what had happened. X said: the Council failed to follow the proper building control process, as it did not serve a notice before it acted; the scaffold company’s fees are excessive; after part of the building collapsed, this caused X to suffer from post-traumatic stress disorder (PTSD), and this condition has required treatment; there is a potential fraud the Council has refused to investigate. This relates to scaffold inspection records which X believes were produced after the date shown on the records; the scaffold blocks a fire escape and prevents repair works from being carried out; and one of the building’s residents is unable to sell their apartment because of the charge placed on the Land Registry.
I spoke with a service manager, who said: it would perhaps have been better to serve a notice instead of taking action itself, but they considered its actions were within its Inspector’s discretion relating to the Council’s statutory powers; it was their understanding (the service manager) that the Council had entered into a contract with the scaffold company. This was to shore up a dangerous building because a collapse could have affected the public, as it was close to the highway; the Council’s lawyers had been consulted and had advised the Council was entitled to place a charge on the Land Registry and could take further action to recover its expenses; it was their opinion (the service manager) that the scaffold did not prevent repair works as further work and investigation by a competent professional before the scaffold could be removed; and the Council intends to send an invoice to the owners along with a letter which will indicate the right of appeal to the magistrates court, if the owners believe its costs were excessive or its claim unlawful or unfounded.
My findings
We are not an appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
Before we begin or continue our investigations, we consider two, linked questions, which are: Is it likely there was fault?
Is it likely any fault caused a significant injustice?
If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide: not to investigate; or to end an investigation we have already started.
Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
I should not investigate this complaint further, and my reasons are as follows: Under provisions of the Building Act 1984, the owners have a right to challenge the Council’s claim for expenses in a court. We are not a court and cannot decide matters of law. The court is better placed to decide whether the Council is entitled to recover its costs.
X said that repair costs and other financial losses are very large, and the Council should be held responsible for them. X also believes the Council’s failure was responsible for causing their PTSD. Our remedies are not intended to compensate complainants for their losses and are aimed at acknowledging the impact fault has had. We are not a court and cannot make orders requiring compensation for personal injuries and financial losses. Claims like this are better dealt with by a court.
X has also complained the Council failed to investigate their allegation of corruption. Corruption is a criminal act, and we do not investigate crimes. Crimes are usually investigated by the police.
Final decision
I ended my investigation because the issues X raised and the allegations they made could be decided in a court or investigated by another body.
Investigator's decision on behalf of the Ombudsman