Summary: Miss X said the Council failed to investigate her complaint about the smell caused by clinical waste bins from a neighbouring care home. We have seen nothing to indicate the Council knew about Miss X’s concerns before she complained to the Ombudsman. The Council was not at fault. However, the Council’s failure to consider Miss X’s complaint under the Environmental Protection Act after we told it of her concerns was fault. This caused Miss X avoidable frustration. The Council has since taken action to remedy the injustice.

The complaint

1. Miss X said she has complained to the Council for over three years about the smell caused by clinical waste bins from a neighbouring care home. She said the Council has not responded to her complaints.
2. Miss X said the smell means she cannot use her garden and she is unable to hang her washing up outside. She said the lack of response from the Council has caused her upset and frustration.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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

5. I discussed the complaint with Miss X.
6. I asked the Council questions about its contact with Miss X.
7. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

8. Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
9. Typical things which may be a statutory nuisance include:
• noise from premises or vehicles, equipment or machinery in the street;
• smells from industry, trade or business premises;
• artificial light from premises; and
• insect infestations from industrial, trade or business premises.
10. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and/or
• injure health or be likely to injure health.
11. This Council said when it receives a complaint about odour nuisance, it contacts the customer to discuss their concerns and explain the investigation process. It then asks the customer to complete a diary sheet to monitor the frequency of the smell and how it affects their enjoyment of their land. These forms are used to determine whether there is a likelihood a smell might be a statutory nuisance. If so, the Council completes a site-visit to observe the smell.
12. The Council uses its professional judgement to decide whether a statutory nuisance exists and the further action necessary.

Background

13. Between February and August 2019 Miss X contacted the Council’s Environmental Health Service with complaints about a rat infestation at her property and noise nuisance. The case records show that the Council sent pest control to her property, and it also contacted the nursing home next door to discuss her allegations of noise.

What happened

14. Miss X wrote to the Council in January 2021. The Council signed to say it received that letter.
15. Miss X also wrote to the Ombudsman. She said she was unhappy about the smell coming from the clinical waste bins at the care home next to her property. We contacted the Council; it said it had not received any complaints from Miss X about the smell.
16. As the Council had not dealt with Miss X’s complaint, we passed it back for the Council to consider. The Council responded to us in May 2021. It said the disposal of clinical waste was the responsibility of the care home and the health authority and not the Council. It said without clarification of who Miss X had sent her complaint to in January, the Council could not respond to the matter.
17. In response to our enquiries, the Council’s Environmental Health Team said it had not received any complaints about smell from Miss X, despite us passing on her complaint.
18. The Council has since completed a site visit. It has asked Miss X to keep a record of when she experiences odour nuisance so it could consider her concerns.

My findings

19. The case records show Miss X contacted the Council about rat infestation and noise in 2019. I have not seen anything to show she complained about smell.
20. The Council said it had not received Miss X’s letter of complaint from January 2021. The Council signed to say it received the letter Miss X sent in January 2021. However, I do not know the content of that letter, who it was addressed to at the Council or whether Miss X included her personal details in it. Therefore, I cannot investigate how the Council dealt with that complaint further.
21. After we passed details of Miss X’s complaint onto the Council, it responded by stating it was a complaint for the care home. It took no steps to investigate it. Miss X’s complaint is about a smell coming from a business premise. Therefore, the Council’s response that it is not a complaint for it to consider is incorrect. The Council should have considered the smell under the Environmental Protection Act. Failure to do so was fault and caused Miss X undue frustration.
22. The Council has started its process for investigating odour nuisance. That remedies any injustice caused.

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Final decision

23. We find the Council at fault for failing to consider Miss X’s complaint about odour. The Council has already started to investigate Miss X’s odour complaint therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman