Summary: We will not investigate this complaint about how the Council responded to reports of a possible statutory nuisance. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. The complaint is late and could have been made to the Ombudsman much sooner. Even if the complaint was not late, we would not investigate. This is because there is not enough evidence of fault by the Council to warrant an investigation.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained about how the Council dealt with his concerns about a light which shines into his home.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
4. 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)

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How I considered this complaint

5. I considered information provided by the complainant and the Ombudsman’s Assessment Code.

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What I found

Statutory nuisance

6. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Artificial light from premises is one of the things which can be a statutory nuisance.
7. 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.
8. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an Environmental Health Officer, or EHO) to gather evidence. Council officers will often undertake site visits. The Council needs to take into account the impact the matter reported would have on the average person.
9. Once the evidence-gathering process is complete, the EHOs will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists. If they agree that a statutory nuisance is happening, has happened, or will happen in the future, councils must serve an abatement notice. This requires whoever is responsible to stop or restrict the light. 
10. Councils can attempt to resolve statutory nuisance complaints informally if they think the threshold for a statutory nuisance has not been met.

Background

11. Mr X has complained to the Council about a light from a neighbouring property which shines into his home. Mr X said the light makes it difficult to sleep and is affecting his family’s health. Mr X is unhappy the Council has decided the light does not represent a statutory nuisance. In its responses to Mr X’s complaints the Council said:
• Two officers visited Mr X’s property in January 2020.
• They visited the property when it was dark.
• Officers could see the light in question through a bedroom window.
• There was a minor reflection on the wall which could not be photographed.
• Mr X’s wife (Mrs X) had said the main issue was when she was lying in bed. Mrs X did not want to close the curtains. The officers noted that a dressing table would obscure the light when lying in bed.
• The light could be obscured by drawing normal curtains, although Mrs X did not want to do this.
• Both officers decided the light did not constitute a statutory nuisance.
• The Council would be willing to visit Mr X’s home to assess the impact of the light in other rooms.
• Mr X could contact the Ombudsman. It first said this in February 2020.

Assessment

12. We will not start an investigation into Mr X’s complaint. There are two reasons for this.
13. Firstly, the Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. The Council referred Mr X to the Ombudsman in February 2020. His complaint is therefore late. We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are good reasons to do so. I do not consider that to be the case here. I see no reason why Mr X could not have complained much earlier, and so the exception at paragraph 2 applies to his complaint.
14. But even if Mr X’s complaint was not late, we would not investigate. This is because there is not enough evidence of fault.
15. The Ombudsman is not an appeal body for people who disagree with a council’s decision. We cannot question the merits of decisions which have been properly made. We do not comment on judgements councils make unless they are affected by fault in the decision-making process The Council has considered Mr X’s reports of a possible statutory nuisance and subsequent complaints. It has decided the light is not a statutory nuisance. The Council has decided it therefore has no powers to act. It has explained its decision to Mr X.
16. While I know Mr X disagrees with the Council’s decision, there is not enough evidence of fault in how the Council has reached its decision to warrant the Ombudsman becoming involved.

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Final decision

17. We will not investigate Mr X’s complaint. This is because the complaint is late. Also, there is not enough evidence of fault by the Council to warrant an investigation.

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Investigator's decision on behalf of the Ombudsman