Summary: Mr and Mrs X complained about the Council’s failure to take action against their neighbour for smoking in his garden and allowing smoke to drift into their home. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault which would warrant an investigation.

The complaint

1. The complainants, whom I shall call Mr and Mrs X, complain that their neighbour smokes in his garden or out of his window and smoke enters their home and is affecting their health. They want the Council to take action to prevent their neighbour from smoking near their home.

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The Ombudsman’s role and powers

2. 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’. 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:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

3. I have considered all the information which Mr and Mrs X submitted with their complaint. I have also considered the Council’s response and Mr and Mrs have been given the opportunity to comment on the draft decision.

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What I found

4. Mr and Mrs X complained to the Council about their neighbour smoking outside and smoke drifting into their home. They wanted the Council to take action against the neighbour. The Council told them to complete diaries of when the incidents took place and visited their home.
5. The Council concluded that the neighbour’s actions did not amount to a statutory nuisance and that they could not serve any abatement notice to prevent it. Smoking outside is not illegal in the UK and anyone can smoke on their own premises without being considered a nuisance.
6. Mr and Mrs X say their neighbour has a tenancy agreement with his landlord which says the property is for non-smokers. This is a private matter between the neighbour and his landlord.
7. 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.

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Final decision

8. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault which would warrant an investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman