The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s failure to support Mr X’s claim that he is exempt from anti-smoking legislation and that it is his right to be able to medicate by means of a vape. This is because we are unlikely to find evidence of fault by the Council.
The complaint
Mr X complains the Council has refused to recognise that the vape he uses for medical purposes is exempt from anti-smoking legislation and has refused to acknowledge his right to use it public venues and his own home. He says he is being discriminated against.
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 any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement, or we could not add to any previous investigation by the organisation, 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 considered information provided by the complainant, including the Council’s response to his complaint.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X complained to the Council about its position in relation to him using his vape to medicate himself at public venues around the Council area.
The Council responded to him in September 2022 to explain that the venues are required to comply with the Health Act 2006 and so will not allow vaping inside their properties.
When he progressed his complaint to Stage 2 the next year, the Council confirmed the advice he had been given previously and said its licensing team had given no formal or informal guidance to the venues about Mr X vaping in outdoor areas nor was there any reason why it would do so. It said that such a decision would be for the venues concerned to decide and that while the Council would look into any complaint it received, it thought it most unlikely that it would consider it appropriate to take action against any venue that allowed him to vape outside.
While Mr X may be disappointed the Council has not supported his position with regards to his vaping in the way he would have liked, there is no evidence to suggest it has been at fault and we will not investigate the complaint.
Mr X believes the Council has discriminated against him under the Equalities Act 2010. However, we cannot decide if an organisation has breached the Act as this can only be done by the courts. If Mr X wants to pursue a legal case, he should seek legal advice.
Final decision
We will not investigate Mr X’s complaint because we are unlikely to find evidence of fault by the Council.
Investigator's decision on behalf of the Ombudsman