Summary: We cannot by law investigate this complaint that the Council failed to take action in relation to environmental health issues which affected the complainant’s use and enjoyment of her home. This is because the complainant exercised her right to refer the matter to the magistrates’ court to determine the issues. We have no jurisdiction to investigate in these circumstances. The complaint also raises issues about data protection which we will not investigate as we are not the appropriate body to consider these.

The complaint

1. The complainant (Mrs X) complains the Council failed to properly investigate reports she had made since 2020 about air and smoke pollution being emitted from within the residential development where she lives. In 2021, Mrs X says the wrongly decided that the problem did not amount to a ‘statutory nuisance’ under the Environmental Protection Act 1990 (the Act). Following this, Mrs X applied to the magistrates’ court which found the problem did amount to a ‘statutory nuisance’ and therefore required the Council to take action to address this.
2. In summary, Mrs X complains the Council failed to properly investigate the problem and comply with its legal duty to take action to abate this. As a result, Mrs X says her and her family had to endure years of a smoke-related interferences which damaged their health which was preventable.
3. In addition, Mrs X complains the Council misused her personal information by sharing this with the housing association which manages the residential development she lives at. As a desired outcome, Mrs X wants the Council to carry out a detailed review of the case so that it can be held accountable for the alledged fault and inform service improvements.

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The Ombudsman’s role and powers

4. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended).
5. We normally expect someone to refer the matter to the Information Commissioner’s Office (ICO) if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended).

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How I considered this complaint

6. I considered information provided by the complainant and the Council. I also considered the Ombudsman’s Assessment Code.

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My assessment

7. From the information provided by Mrs X, I understand she made an application to the magistrates’ court and asked it to determine whether the problem amounted to ‘staturory nuisance’ under the Act. In early 2024, Mrs X says the court found the problem did amount to this. I understand why Mrs X has therefore questioned the Council’s consideration of the same issue. However, we cannot by law investigate a complaint where the complainant has exercised his/her right of appeal, reference or review or remedy by way of proceedings in any court of law. This is the case even if the action does not provide a complete remedy for all the injustice claimed. We cannot therefore consider this part of the complaint.
8. Separately, I note Mrs X complaints about the Council’s misuse of her personal data by disclosing this to an unauthorised third party. We cannot make binding decisions as to data protection matters, nor enforce data rights. The appropriate body to consider and decide such matters is the ICO. I see no reason why Mrs X cannot reasonably refer this part of his complaint to this body. We are not the appropriate body to consider this issue and so we will not consider it further.

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Final decision

9. We will not investigate this complaint because the restrictions I outline at paragraphs four and five (above) apply.

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Investigator's decision on behalf of the Ombudsman