London Borough of Barnet (17 012 637)

Category : Environment and regulation > Health and safety

Decision : Not upheld

Decision date : 30 May 2018

The Ombudsman's final decision:

Summary: There was no fault by the Council in its response to Mr and Mrs X’s complaints and concerns about their neighbour Mr Y’s use of his wood-burning stove. The Council made its professional judgement decisions on the issues raised without fault.

The complaint

  1. Mr and Mrs X called the fire service on 20 January 2017 because smoke was coming into their property from next door. Their neighbour Mr Y had lit a fire in his wood burning stove which had caused the smoke. Mr Y is not a Council tenant, but the stove was funded and fitted by the Council in 2013.
  2. Mr and Mrs X complain the Council has:
    • failed to act on the unsafe wood burning stove, and Mr Y’s unsafe use of it.
  3. There have been no further incidences of smoke coming through from Mr Y’s home. The Council has told Mr Y not to use the stove. But Mr and Mrs X have witnessed smoke coming from the chimney, five times during October 2017 alone.
  4. Mr and Mrs X are concerned the stove and Mr Y’s use of it leaves them at risk of another incident, including a house fire. They want the Council to remove the stove and provide Mr Y with a safer heating system. Mr and Mrs X also want the Council to contribute to their solicitor bill of £5,000, which they have accrued while dealing with the Council on the matter.

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The Ombudsman’s role and powers

  1. 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)
  2. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • the injustice is not significant enough to justify our involvement, or
  • we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

  1. 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)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by Mr X;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • discussed the issues with Mr X;
    • issued a draft decision, inviting comments from Mr and Mrs X and the Council, and considered replies received.

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What I found

  1. Mr Y lives alone in a semi-detached house he co-owns with his brother. The house is attached to Mr and Mrs X’s house. Mr Y has vulnerabilities but has not been assessed as needing ongoing Council support, such as might be provided through a social care plan.
  2. Mr and Mrs X and Mr Y have had various disputes about the state of Mr Y’s property and his lifestyle over previous years. The Council has been involved in assisting and providing support to Mr Y at his property. This included funding and installing a wood-burning stove there in 2013.
  3. On the evening of 20 January 2017, Mr and Mrs X called the fire brigade as they saw smoke coming into their property, through the floorboards from Mr Y’s house next door. The fire brigade attended. They subsequently produced an incident report. Mr and Mrs X say the report was issued in April 2017. The copy I have is dated August 2017.
  4. Mr and Mrs X reported the matter to the Council. Mr and Mrs X wanted the Council to remove Mr Y’s wood-burning stove. They believed Mr Y was not competent to use and maintain it, and feared further incidents of smoke, or a fire. Mr Y had been found to be using the wrong kinds of wood in the stove previously. Mr X also suffers from a medical condition which makes him susceptible to the effects of smoke.
  5. Mr and Mrs X contacted Councillor A who initially took the matter to the Council’s officers for them. Dissatisfied with the results from the Councillor’s involvement, Mr and Mrs X instructed a solicitor to pursue their concerns with Council officers.
  6. I have considered the actions the Council took in response to Mr and Mrs X’s concerns. The evidence shows the Council:
    • assessed Mr Y’s ability to use the stove, and his understanding of the wood he must burn in it;
    • considered whether a different heating system would be sustainable for Mr Y to use;
    • bought and delivered to Mr Y a supply of appropriate wood to burn in the stove;
    • repaired defects with the stove;
    • had the stove assessed by three different heating firms, certified under the national HETAS scheme. The first two assessments were contradictory, so the Council commissioned a third from another firm, after consulting directly with HETAS;
    • offered a visit to Mr and Mrs X from Council officers and the original installers of Mr Y’s stove in July 2017, to discuss the January 2017 incident and investigate how it might have happened. Mr and Mrs X declined the visit but they say the installers visited anyway.
  7. I have not seen evidence of fault in the Council’s response here. Officers cannot order Mr Y to follow their guidance for using the stove, or police it. But I consider they have taken appropriate and proportionate action to encourage Mr Y’s better use of the stove. They have taken account of Mr Y’s personal circumstances and balanced those with Mr and Mrs X’s concerns about their own property and safety.
  8. The Council has a wider role to balance Mr and Mrs X’s demands against Mr Y’s circumstances and requirements. I consider the Council has acted without fault as it sought to allay Mr and Mrs X’s fears, while acting within its powers to encourage Mr Y’s engagement and compliance with safer use of his stove.

Council decisions

  1. The key issues on which officers have made decisions are:
    • the January 2017 incident is not sufficient grounds for them to enforce against Mr Y in respect of the stove;
    • to take any enforcement matter further, the nuisance would need to be witnessed by an Environmental Health officer.;
    • Mr Y is competent to use the stove, and that he can and does understand how he needs to use it;
    • the Council cannot lawfully remove the stove without Mr Y’s permission.
  2. These are issues which fell to the Council officers to decide, using their professional judgement. From the evidence I have seen, officers have sought, collected and taken account of appropriate evidence and advice when reaching their views on all these matters. I do not consider there has been fault by the Council in how it made its decisions. So there are no grounds for me to go behind the officers’ professional judgement decisions, which they were entitled to make.
  3. I realise Mr and Mrs X disagree with the Council’s decisions. But it is not fault for a council to make professional judgement decisions, not involving fault, with which someone disagrees.

Incident reports

  1. The Council gave Mr and Mrs X the relevant contact number for them to report any further smoke incidents. Officers have noted there have been no such reported incidents since the January 2017 one. It is not fault for the Council to decide there is insufficient evidence to support enforcement action.

Stove assessments

  1. Mr and Mrs X say the stove installer told them during the July 2017 visit that Mr Y’s stove was illegal. They consider the Council chose an alternative firm because the installer which visited decided the stove was unsafe.
  2. The Council instructed three HETAS-registered installers:
    • The first firm in March 2017 considered the stove to be safe but thought the chimney may need some amendment;
    • The second firm, which visited in July, found faults with the stove which they considered meant it should not be used until the repairs were done;
    • The third firm visited Mr Y in August then reported various defects with the stove and issued a warning notice for it not to be used.
  3. The Council says that once it had received two reports, which were contradictory about the safety or otherwise of the stove, they decided to seek a definitive opinion directly from HETAS. They contacted HETAS who referred them to the third registered firm. The Council sought a second opinion after the first opinion deemed the stove to be safe. They then received a third opinion which supported the second one.
  4. Officers acted to determine whether the stove was safe. They sought three professional opinions to do this, rather than relying on the first opinion which said it was safe. I do not consider there was fault by the Council here.

Decision not to remove the stove

  1. However, after determining the status of the stove, the Council also took advice on whether officers could legally order its removal from Mr Y’s property. The Council’s officers got legal advice before deciding they could not remove the stove, unless Mr Y agreed. Mr Y does not want the stove removed.
  2. It was not fault for officers to seek then follow their legal advice when reaching their decision that, in the current circumstances without Mr Y’s agreement, they would not remove his stove. The Ombudsman has no grounds to go behind the Council’s legal advice, and the officers’ decision to follow that advice.
  3. The key practical outcome Mr and Mrs X are seeking from their complaint is for the Council to remove Mr Y’s stove. I do not consider the Ombudsman can achieve that outcome here. I recognise this is not a satisfactory situation for Mr and Mrs X. Mr Y’s stove has been found to be unsafe, and yet the Council has determined they have no authority to remove it. But I consider the Council has done what it can within its powers to try to resolve this matter.

Differing opinions

  1. Mr and Mrs X say the Council’s opinions on the matter have differed. They say officers have decided Mr Y is able to work the stove, but the Council Leader has given his view that Mr Y’s use of the stove is unsafe.
  2. The Council Leader is entitled to have and express their view. But the Ombudsman does not investigate the actions of elected Members or Councillors such as a Council Leader. It is the processes followed and decisions made by the Council’s officers which are relevant to my investigation. I have not seen evidence of officers contradicting one another in their correspondence with Mr and Mrs X on this matter.

Injustice

  1. I have not found fault by the Council. But even if I had, I do not consider there is evidence of sufficient personal injustice to Mr and Mrs X to justify further investigation by the Ombudsman.
  2. I say this because there has been one incident where smoke from Mr Y’s fire came into Mr and Mrs X’s property, on 20 January 2017. There have been no further reported incidents. The Ombudsman cannot recommend remedies for events that have not happened.
  3. I understand Mr and Mrs X worry a similar or worse incident with the stove might happen. Their concern does not stem from actions by the Council. There is no action the Ombudsman can take or recommend from the Council to remove that worry.

Legal fees

  1. Mr and Mrs X have legal fees from instructing a solicitor to act on their behalf with the Council. As I have not found fault by the Council, there are no grounds for me to recommend the Council to pay for any of those fees.
  2. Even if I had found fault, I would not be recommending the Council pay those legal fees in full or in part. I say this because if someone employs a professional person such as a solicitor to help them make their complaint, the Ombudsman would only ask a council to pay their fee in exceptional circumstances. This is because people do not usually need professional help to make a complaint.
  3. I consider it was Mr and Mrs X’s choice to instruct a solicitor to correspond with the Council here. In my view, the process of complaining to the Council on this matter was not an exceptional circumstance.

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Final decision

  1. I have not found fault by the Council. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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