Summary: Mrs X complained the Council failed to properly respond to complaints she made about strong smells and toxic fumes coming from a nearby flat which she says were seriously affecting her son Mr Y’s health. She said the Council’s failure to investigate this matter led to Mr Y having to be hospitalised and he is currently unable to return to his home. There was no fault in the way the Council conducted its investigation or responded to Mrs X’s complaint.

The complaint

1. Mrs X complained the Council would not investigate strong smells and toxic fumes coming from a flat near to her son Mr Y’s home. She complained that because of this, Mr Y had to go to hospital and is unable to return to his home.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. If we are satisfied with a council’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)

Back to top

How I considered this complaint

4. I made enquiries of the Council and considered the information it provided, this included complaint correspondence shared between it and the Mrs X and a complaint chronology.
5. I wrote to Mrs X and the Council with the draft decision and considered the comments I received before I finalised the decision.

Back to top

What I found

Law

6. Under the Environmental Protection Act 1990 it is an offence to cause a statutory nuisance. A statutory nuisance can be odours, fumes, and/or dust however the Act excludes odours from domestic premises from being a nuisance.
7. If someone complains about nuisance from pollution, councils should investigate and decide whether it is a statutory nuisance. Councils can also choose to take informal action if something causes a nuisance but is not a statutory nuisance.
8. Councils have a duty to take reasonably practicable steps to investigate complaints of various nuisances, including smells arising from industrial or business premises that are harmful to health or that cause a nuisance. Councils do not have powers to deal with cooking odours from domestic properties unless the property is owned by the Council.

What happened

9. Mr Y moved into his property in October 2019. On 2 December 2019 he contacted the Council to complain about cooking smells coming from his neighbour’s flat. The Council told him domestic odours were not considered a statutory nuisance and closed the complaint.
10. On 3 January 2020, Mr Y contacted the Council to complain his neighbours were cooking frequently and he suspected they were running a business. The Council consulted its environmental health team and decided not to investigate but sent the neighbours a letter stating they would need to register any food business with the Council’s food and safety team.
11. On 11 May 2020, Mrs X wrote to the Council on Mr Y’s behalf stating that odours coming from the neighbour’s flat were affecting Mr Y’s breathing. Staff from the Council’s food and safety, environmental health and anti-social behaviour teams held a meeting to discuss the issue. Mrs X sent the Council a further email on 13 May 2020, saying she believed there was carbon monoxide coming from the neighbour’s flat, as well as toxic fumes from the cooking of mustard oil. The Council say they told her to register a carbon monoxide leak and advised that Mr Y consult his GP as his doctor indicated Mr Y was suffering from allergies.
12. On 14 May 2020 Mr Y was admitted to hospital. Mrs X says this was caused because of the cooking fumes leaking into his property. She sent the Council a letter from Mr Y’s doctor stating, “Mr Y’s neighbours have been using mustard oil in cooking…this is highly irritating agent that is toxic to eyes, skin and airways. This exposure has triggered a hospital attendance.” The Council held a further meeting and concluded there was no evidence that mustard oil used for domestic cooking could cause harmful gases and so it would not intervene further. However, it was agreed at the meeting that a police community safety officer would visit the property to assess the situation.
13. On 18 May 2020, the Council wrote to Mrs X and told her again that domestic odours are not considered a statutory nuisance by law. The Council offered to investigate the anti-social behaviour displayed by Mr Y’s neighbours and confirmed its food and safety team would investigate any evidence it received of an unregistered food business. The Council confirmed a police community support officer visited both properties and did not find evidence of strong odour or that mustard oil was being used. The Council’s environmental health officer also investigated and contacted Mr Y’s GP and Public Health England. The officer did not find any evidence of mustard oil.
14. On 14 June 2020, Mrs X wrote to the Council saying Mr Y had returned to his home to collect his belongings but could not stay long because he had experienced another reaction and had to take medication. Mrs X said the Council should not class the problem as antisocial behaviour and provided letters from Mr Y’s GP recommending that he not return to his building.
15. The Council responded on 16 June 2020 stating Police had visited the property and did not find evidence of mustard oil. The Council said, “The Environmental Protection Act 1990 gives the Council the power to act on fumes or gases that are prejudicial to the health of the average person, it does not provide protection to individuals with specific sensitivities such as allergies.” The Council suggested that Mrs X consider mediating with the neighbours suspected of causing the issue.
16. Mrs X formally complained to the Council on 21 July 2020 on Mr Y’s behalf. She said the Council’s environmental officer had been obstructive and unhelpful.
17. The Council wrote to Mrs X on 2 September 2020 at Stage 1 of its complaints process. The Council said it had reviewed the environmental health officer’s actions and was satisfied he had acted appropriately. The Councils said, “The tenor of the scientific advice is that mustard oil is not dangerous to health but of course individuals may have a bad reaction to particular smells and substances.” The Council also said it could not intervene with the issues Mr Y was having with his neighbours.
18. Mrs X made a freedom of access request to the Council on 9 September 2020. After reviewing the information provided by the Council, Mrs X wrote to the Council and reiterated her unhappiness with the situation and the Council’s investigation. She said the Council had not been thorough enough with its enquiries and disagreed with its decision that the smell/fumes did not meet the criteria for a statutory nuisance. She said she was not complaining about the smells coming from Mr Y’s neighbours but the toxic gas and fumes created by their cooking habits and this was covered by the Environmental Protection Act 1990.
19. On 23 September 2020, the Council wrote to Mrs X with its final response.
    The Council noted Mrs X’s unhappiness with the situation but maintained it had investigated the matter and did not find evidence of a statutory nuisance.
20. Mrs X referred her complaint to the Ombudsman because she was unhappy with the Council’s response.

Findings

21. The crux of Mrs X’s complaint is her belief that the Council has not done enough to investigate the smells and fumes affecting Mr Y. It is not the Ombudsman’s role to decide whether the smell Mrs X has complained about is a statutory nuisance. This is the Council’s role. After Mrs X brought the matter to the Council, the Council held meetings and reviewed the information supplied by Mrs X. The Council’s environmental health officer conducted research and the Council liaised with the police community support officer who visited the property. The Council decided based on this that there was no evidence of a statutory nuisance. The Ombudsman cannot question the merits of a decision the Council has correctly made. There is no evidence of fault in the Council’s decision making.
22. Mrs X has stated that the source of the smells/fumes is mustard oil. Having reviewed the available evidence, I cannot say whether this is true. I am also unable to say whether the issue could be classed as fumes or smoke. The Council does not have the power to act regarding smells coming from domestic property and has decided not to take further action. The Council is entitled to make this decision.

Back to top

Final decision

23. There was no fault in the way the Council conducted its investigation or responded to Mrs X’s complaint. I have therefore completed the investigation.

Back to top

Investigator's decision on behalf of the Ombudsman