The Ombudsman's final decision
Summary: Miss D says the Council failed to properly investigate a statutory smoke nuisance caused by a neighbouring property. The Ombudsman has not found evidence of significant fault and has completed the investigation and not upheld the complaint.
The complaint
The complainant (whom I refer to as Miss D) says the Council failed to properly investigate reports of an alleged statutory nuisance caused by smoke at a neighbouring property. She says the smoke has made her mother (Mrs D) ill.
The Ombudsman’s role and powers
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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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)
How I considered this complaint
I have considered the information provided by Miss D. I asked the Council questions and examined its response.
I shared my draft decision with both parties and considered Miss D’s comments.
What I found
What happened On 8 April 2021 Mrs D called the Council reporting smoke from a neighbouring property making her feel unwell. Miss D chased up the Council three times in April and on 5 May. On that day the case was assigned to an Officer. He spoke to Miss D and explained the Council was not a smoke free zone and open fires were permitted. He also explained about dark smoke legislation not applying to domestic properties. He sent Mrs D a log sheet to complete and return. He also notified the neighbour that a report had been received. The Council has no record of receiving a completed log and on 7 June Mrs D told the Council the problem had stopped. The case was closed.
On 17 November the Council received a log sheet from Mrs D. It reopened the case and subsequently liaised with Building Control to check information given by Mrs D. It also contacted the neighbouring property owner who showed the required certification for the fire in December. At the end of December Mrs D sent a further log to the Council. The Officer spoke to Mrs D in January 2022 and confirmed a visit would be made to the neighbouring property.
Officers visited the neighbouring property at the start of March. They viewed the fire being lit and used. No statutory nuisance or any other issues were found. Officers reviewed the case in April and concluded there was no issues the Council could enforce. They wrote to Mrs D on 4 April explaining the outcome of the investigation and confirmed no statutory nuisance had been witnessed.
In April and May Officers were in the area and carried out external observations of the neighbouring chimney. No statutory nuisance was found. In June the case was allocated to a new Officer. That Officer contacted Mrs D in August. The Council wanted to visit the property to see how the smoke gathered inside it. Miss D and Mrs D subsequently advised they did want a visit.
What should have happened The Council will consider reports of an alleged statutory smoke nuisance. Reports are allocated to an Officer to investigate. Usually, the Officer will make initial contact with the complainant and send out a log sheet to be completed and returned. That is used to assess the type of nuisance, frequency, duration, and location. This informs whether further investigation is required. The Council also has to notify the alleged perpetrator that a complaint has been made. If the complainant does not return the log or submit any additional evidence the Council is unable to progress its case. If there is no evidence of a statutory nuisance or the complainant tells the Council the nuisance had ended the case will be closed.
When investigating an alleged statutory nuisance, the Officer will use their professional judgment to determine if enforcement action is needed. They will visit the alleged perpetrator and may liaise with Building Control to check the necessary certification is in place for the installation of a solid fuel fire. Visits to a property require at least a 24-hour notice.
The Council does not have a designated smoke control area, this means solid fuel/ open fires are permitted in domestic properties. There are no regulations, only guidance, on what type of wood a person can use on their fire. In respect of burning waste and causing dark smoke there is no legislation for domestic properties, only for industrial/ trade sites.
Was there fault by the Council There was some delay by the Council after it received Mrs D’s report in April. It was a month later that an Officer was assigned to the case. The Council apologises for this and says it was short staffed and had to deploy people to work on Covid related matters. Whilst there was an initial delay, I also note the Officer assigned the case took matters forward promptly. Given the Council did not then receive any further reports or a completed log from Miss or Mrs D I do not see the initial minor delay had a significant impact. The Council had no evidence to pursue and was correct to close the case in June after it was advised the nuisance had stopped. There were periods of no direct contact from the Council in February and April 2022 and after the case was reallocated during July to August. I do not see that amounts to fault. The Council is not required to send monthly updates on the case.
Miss D says the Council did not send a decision letter closing the case in June 2021. The Council closed the case is response to contact from Mrs D stating the nuisance had ended. In view of this, whilst a letter should ideally have been sent, I consider the shortcoming by the Council does not amount to a significant administrative fault.
Miss D says the Council failed to correctly investigate and should have taken enforcement action. I have not found any evidence of fault. The investigation was conducted in line with procedures. Officers assessed the information provided by Miss D and Mrs D, it liaised with Building Control (and found no issues) and the alleged perpetrator. All the relevant checks were made and a site visit to the neighbouring property was undertaken. At no point did Officers witness a statutory nuisance or any other issues that would warrant further action. It is not for the Ombudsman to assess whether there was a statutory nuisance, that is for the Council to determine. The Ombudsman will not question the merits of decisions where the correct process has been followed: that applies to this case.
Miss D also referred to the Council failing to make unannounced visits to the neighbouring site. Again, there is no fault in this matter. The Council is required to give notice for visits when it needs to enter a property.
Final decision
I have completed the investigation and not upheld the complaint.
Investigator's decision on behalf of the Ombudsman