Report. on an investigation into complaint no 04/C/16327 against Birmingham City Council. 29 September 2005

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1 Report on an investigation into complaint no against Birmingham City Council 29 September 2005 Beverley House, 17 Shipton Road, York YO30 5FZ

2 Investigation into complaint no against Birmingham City Council Table of Contents Page Report summary 1 Introduction 3 Investigation 3 The core issue 3 The two methods of Building Regulations approval 4 Works at the house 4 Views about the building notice route 5 Alleged injustice and desired remedy 6 Conclusion 7 Key to names used Officer A A Senior Building Regulations Officer

3 Report summary Building control The complainants were concerned because the Council failed properly to identify works that were required by the Building Regulations when they started to modify their home. Finding To some extent the complainants expected more of the Council than was reasonable. They chose to use a method of obtaining approval under the Building Regulations that was inherently risky and could not expect the Council to offer full advice without clear prompting. However, at one point an officer clearly failed to advise correctly and as a result the complainants continued with work that has proved abortive. That was maladministration resulting in injustice. Recommended remedy The Local Government Ombudsman recommends that the Council should compensate the complainants for abortive works together with 500 for their time and trouble and the needless inconvenience that arose. The Council has indicated a willingness to compensate the complainants if they can provide evidence of the cost of the abortive works. 1

4 2

5 Introduction 1. The complainants are a couple who allege that the Council failed properly to carry out inspections under the Building Regulations. As a result they are faced with remedial work at their home. 2. For legal reasons, the names used in this report are not the real names of the people and places concerned An officer of the Commission has visited the complainants, has examined the Council s files and has interviewed a senior officer of the Council. 4. An opportunity has been given for the complainants and the Council to comment on a draft of this report prior to the addition of the conclusion. Investigation The core issue 5. The complainants bought a two-storey house. They wanted to convert the loft into an en-suite bedroom. This, among other things, meant creating a stairway from the first-floor landing into the new room. 6. The Building Regulations applied to this work. The Regulations deal, among other things, with risks from fire and distinguish between two storey dwellings and those with more than two storeys. With a two-storey dwelling there is no requirement for a fire resistant escape route using the stairway (people being able to escape from fire by leaving the building through first-floor windows). 7. Where there are more than two storeys then a protected route is needed as escaping from windows above the first-floor would be very hazardous. Doors onto any staircase must, therefore, be self-closing and if any part of the stairway forms part of an open plan area then it needs to be separated from it by fire resistant material. 8. The lounge and kitchen area in the complainants house is open plan and the stairway runs down one wall of the lounge, being open to it for the full length. This was an important feature for the complainants when they bought the house and they are not willing to see it changed. In order to build a room in the loft and to comply with the Regulations meant, however, that the whole stairway needed to be boxed in using suitable fire resistant materials and construction. A fire resistant door was also required at the entrance to the loft room. 9. In the event the complainants only learnt of this requirement sometime after works had begun. They believe that the Council should have identified the issue at an early 1 Local Government Act 1974, section 30(3) 3

6 stage. Had that happened they say they would not have started to convert the loft and would have left the house as it was. As it is they remain unwilling to lose the open plan aspect of the house and so have spent time and money on works which are now of no value to them. The two methods of Building Regulations approval 10. Two methods are available when applying to a council for approval of works. One is called The Full Plans Route. This entails submitting detailed plans showing the intended work. Once the Council has approved those plans then work which complies with them is satisfactory under the Regulations. 11. The other route (the one chosen by the complainants) is to use what is known as a Building Notice. Detailed plans are not required (although the Council can insist on certain further details if justified). Whether or not any work then complies with the Regulations is finally determined by the Council when that work is complete. Works at the house 12. The complainants served a Building Notice on the Council in February Shortly afterwards the Council asked for and received certain structural calculations. The submitted details included plans of both the ground and first floors. That of the ground floor does indicate that the stairway ends in the lounge area with no intervening door or partition. It also shows that the ground floor is open plan. 13. The complainants say that this plan should have alerted the Council to the key issue. Officer A, a senior officer in the department dealing with the Building Regulations, disputes this. He says that the plans followed a request specifically aimed at providing structural calculations unrelated to fire safety and they were checked and agreed by specialist structural engineers. The complainants say that they were told by one of the Council s Building Control officers, who was not one of the structural engineers, that the structural calculations had been passed. 14. The complainants say that the Council s failure to identify the full nature of their proposals at the stage of considering the structural calculations was crucial. 15. Work began in February It was carried out by the complainants with the help of a relative who is a builder. The records show that a number of inspections were made from the outset. There is no significant disagreement between the complainants and the Council about the nature and outcome of these inspections. There is, up to an inspection made on 28 April (see below), no record of any comments or inquiries from either side about the staircase. 16. The complainants say that in order to check on work at first-floor and loft level the officers who visited needed to walk up and down the open plan staircase. They believe that the need ultimately to box this in should have been obvious to those officers yet no one saw fit to mention it. 4

7 17. The inadequacy of the open plan staircase was ultimately recognised by an officer (also see below). The Commission s officer asked the Council why that could not have happened sooner and also asked what responsibility the Council's officers had for pointing out any problems at an early stage. 18. Officer A replied on behalf of the Council. He states that: To answer the second question first, I have said previously that the ideal would be to go through the whole scheme and discuss all significant issues at an early stage. This, however, would be a lengthy process and may not always be possible. It would also be potentially influenced by questions on particular areas of concern raised by the developers e.g. concern over major structural work. 19. On 28 April an officer visited and his note states: Stairs discharge into open plan lounge explained that smoke and heat detectors are required. The complainants say that this is not an accurate record. They say that no inspector ever commented upon smoke or heat detectors. 20. The complainants say that they were told they needed a door either at the top or bottom of the new stairway leading to the loft room. This was in order to isolate the new room in case of fire. They did not want to do this and so asked the officer about alternatives. They were told they could instead put fire doors on all habitable rooms, which they did. They were not advised about potential problems with the lower open plan staircase. 21. Officer A has considered the available evidence and spoken to the officer who made the above visit. Officer A says: it became evident that (the officer) had confused requirements for two-storey premises with those for three storey premises and had therefore given inappropriate advice. 22. Further inspections were carried out until on 11 January 2005 a different officer visited for the first time. He noted that the loft area had no separation at first-floor level and that the stairs discharged into the lounge which was open plan with the kitchen. He advised the complainants that this was not acceptable. 23. Work on the loft conversion then ceased. The Council, following complaints from the complainants, asked its insurers if it was liable in law. Liability was denied and so the complaints were made to me. Views about the building notice route 5

8 24. The Council says generally that the Building Notice Route is more suitable for simple types of work (i.e. not including loft conversions) and is best used by experienced builders who understand the Building Regulations. In respect of the complainants loft conversion the Council states: The use of a Building Notice for this work was therefore ill advised particularly where the project is largely D.I.Y. 25. In other comments the Council states: I consider that someone using a Building Notice for this type of work should reasonably have familiarized themselves with the regulatory requirement before committing to the scheme. The details submitted for structural calculation purposes would not have been considered for other purposes (ie means of escape). 26. Shortly after the issues within this complaint became known (although not directly related to those issues) the Council began sending a standard letter where someone wishes to convert a loft and to use the Building Notice Route. This letter states that the better course of action is to use the Full Plans Route. If the Building Notice Route is still preferred then the letter specifies certain details that must be provided. This includes the means of escape in case of fire including route to and location of final exit and any glazing within the stairway enclosure. 27. The Council also has general guidance which is available on request (not sent routinely when applications are made). This is entitled Making a Building Regulations Application. This describes the two ways of making an application and describes the disadvantages of the Building Notice Route. Specifically the guidance states: A Building Notice may be inappropriate for more complex work such as a loft conversion. 28. This note was available at the time that the complainants made their application. There is no evidence that they ever sought advice such as may have led to this document being sent to them or that it was ever otherwise provided to them until after they had complained to me. (The general point in the above advice is also made in the Council's website but the specific point about loft conversions is not made there.) 29. The complainants say that they were not alerted to any potential problems with the Building Notice Route until it was too late. They say they chose that route so as to avoid the cost of providing detailed plans. They deny that theirs was a D.I.Y project as they employed a builder. Alleged injustice and desired remedy 6

9 30. The complainants say that they would have left the loft as it was had they known of the requirement to box in the stairway. They say that they now wish to put the house back more or less as it was before they began work on the loft conversion. They believe that the Council should compensate them for the costs of doing this, for the costs of abortive work, and their own time and trouble in having those works carried out together with the inconvenience that has resulted from delays arising once the problem was clear. They say their costs were (although they have not supplied copies of invoices to support that figure) and they seek, in addition, compensation of The complainants would like the Council not to allow the Building Notice Route to be used for loft conversions so as to avoid others having to go through the same problems. Officer A points out that the Council cannot do this as it is a route specifically allowed in law. 32. The Council in response to the draft of this report, indicated a willingness to provide compensation if the complainants could provide evidence of what works were undertaken between April 2004 and January Conclusion 33. Had the complainants known the truth about the requirements of the Building Regulations at a suitably early stage then I am in no doubt that they would have abandoned their plans to extend into the loft. The question for me is to what extent, if any, the Council is responsible for the abortive costs and effort that arose, and for any costs that arise now in putting things back to where they were before. 34. The complainants made a free choice in using the Building Notice Route to gain approval under the Building Regulations. They had a clear responsibility to obtain their own advice on what was best. They cannot blame the Council for consequences that arose simply because of that choice. The Council was in my view under no clear duty to advise them. The fact that it now would do so does not mean that it was maladministration not to do so earlier. Practice can improve without implying that previous practice was fundamentally flawed. 35. By its very nature the Building Notice Route carries risks. Whilst there was nothing to stop officers, when visiting the house, giving advice on the provision for escaping from fire it cannot be assumed that not doing so was maladministration. Officers would not necessarily know the whole of what was planned and it would be onerous to place on them a responsibility to advise on issues that had not been raised and would not necessarily be apparent. Nor do I accept that the Council had any clear responsibility to alert the complainants to concerns about possible contraventions of the Regulations when looking at plans related to a completely distinct point. 36. That said there clearly was maladministration on 28 April At that point an officer clearly confused the situation in what was to become a three-storey house 7

10 with what would be sufficient in one of two storeys. Had that confusion not arisen then I believe that the complainants overall intentions would have become clear at that meeting. The conflict with the requirements of the Regulations would also, therefore, have become clear. The complainants would plainly have stopped work at that point. 37. The injustice that flows from the above maladministration is, therefore, the costs and effort put into any work between 28 April 2004 and 11 January It also includes the needless delay and resultant inconvenience of not knowing the truth for around nine months. Once the truth was known, be that earlier or later, then the complainants were always going to have to consider removing the works they had already done. The Council is not, therefore, responsible for all the costs of restoring the status quo. 38. The Council needs to compensate the complainants for the injustice that arises from its maladministration. If the complainants are determined to return the house to what it was before then the Council should pay the reasonable costs of works carried out in the nine months noted above. Should the complainants decide to proceed after all with the loft extension then I see no call for compensation other than that noted below. 39. I am pleased that the Council is willing to provide such compensation but I recognise that there may be difficulties and disputes over what costs arise. I expect both sides to work to secure an agreement. 40. In addition to any sum as determined above the Council should also pay to the complainants 500 for the needless inconvenience that arose a sum that includes their time and trouble in making their complaints known. I trust it goes without saying that the Council should reinforce the message about the correct interpretation of the Regulations. 41. I cannot ask the Council to ban the use of the Building Notice Route for loft conversions. Anyone who, for whatever reason, prefers to use that route has a legal right to do so. 8

11 Mrs P A Thomas Local Government Ombudsman Beverley House 17 Shipton Road York YO30 5FZ 29 September

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