Summary: Mr X complains the Council has failed to properly investigate or take appropriate action in relation to smoke which enters his property from the restaurant below. The Council’s failure to appropriately respond to and investigate Mr X’s reports of nuisance amounts to fault. This fault has caused Mr X an injustice.

The complaint

1. The complainant, whom I shall refer to as Mr X complains the Council has failed to properly investigate or take appropriate action in relation to smoke which enters his property from the restaurant below. Mr X states the problem has been ongoing since 2018 and the smoke affects his physical and mental health.

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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’. 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)
3. 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

4. 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; and
• Mr 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

Nuisance

5. Councils must investigate complaints about issues that could be a ‘statutory nuisance’. These include noise or smoke from premises or smells from trade or business premises. For the issue to count as a statutory nuisance it must do one of the following:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises
• injure health or be likely to injure health
6. An environmental health officer must witness the statutory nuisance. The officer will come to an independent judgement whether a statutory nuisance exists, considering the type of nuisance, duration, intensity and location. Assessing smells can be difficult because people respond differently to them.
7. If an officer decides a statutory nuisance is happening councils must serve an abatement notice. An abatement notice requires whoever is responsible to stop or restrict the nuisance. The abatement notice will specify a time limit for compliance. It is not an offence to cause a nuisance. However, it is an offence to breach or fail to comply with an abatement notice. If someone does not comply with an abatement notice they can be prosecuted and fined.
8. Those served with an abatement notice can appeal to a court. In certain cases, people who have used the “best practicable means” to stop or reduce the nuisance may be able to use this as grounds for appeal or defence.

What happened here

9. Mr X lives in a flat above a restaurant and complains that smoke from the grill fills his property. Mr X states this affects his health and well being as it can be difficult to breathe and prevents him from sleeping.
10. The Council’s records show Mr X first reported a problem in February 2018 and asked the Council to investigate. He reported further problems in April and May 2018 and explained he had spoken to the restaurant owner about the problem, but nothing had changed. An officer called Mr X in May 2019 but was unable to speak to Mr X. The officer was then unavailable when Mr X returned his call. Mr X reported the smoke problem had set the fire alarm off in his flat on a number of occasions.
11. The Council did not contact Mr X again, and in August 2018 it closed its case as Mr X has not reported any further problems.
12. Mr X contacted the Council again in March 2019 to report the problems were ongoing. An officer called Mr X but was unable to speak to him and closed the case in April 2019. Mr X then contacted the Council again in early May 2019 to report the smoke from the restaurant had been really bad the previous evening. It had come into his flat from around 9pm and prevented him from sleeping. As Mr X did not report any further problems, the Council closed the case in August 2019.
13. Mr X reported further problems in October and November 2019 and in February, March and April 2020. In May 2020 Mr X made a formal complaint about the Council’s failure to investigate or respond to his concerns. The Council acknowledged his complaint and confirmed the Anti-Social Behaviour and Environment team would investigate his concerns.
14. An officer visited the restaurant and spoke to the owner who confirmed they stopped cooking between 10:30 and 11 pm. The officer also viewed the service report for the restaurant’s extractor fans, which had been completed in the last six months. As the officer was unable to visit Mr X’s property to witness the problem due to COVID-19 restrictions, they determined they could take no further action.
15. The Council then wrote to Mr X confirming the restaurant was allowed to cook and was open for deliveries. The Council advised Mr X it was unable to take action against the smell of cooking.
16. Mr X was unhappy with the Council’s response and asked for his complaint to be considered further. He complained that although the actual cooking stopped between 10:30 and 11:00pm the smoke passed through the restaurant’s ventilation system and reached his property from about 1am. Mr X was unhappy he had been reporting problems for more than two years and the Council had not taken the matter seriously. He also noted that other residents had reported problems with smoke and smells from the restaurant.
17. In its response the Council noted it had closed Mr X’s report in August 2018 as officers had no evidence to support enforcement action. It also considered repairs made by the new owners in 2019 were a private matter which the Council had no powers to deal with. As the officer had not witnessed a statutory nuisance related to odour or noise during their visit, the Council could not take enforcement action.
18. Mr X has continued to report problems with smoke from the restaurant entering has property and remains dissatisfied with the Council’s response. He has asked the Ombudsman to investigate. In response to my enquiries the Council states it asked Mr X to keep a nuisance diary of when the nuisance occurred, and to contact the out of hours service so that an officer could visit and observe what was happening from inside his property.
19. The Council states it was unable to confirm whether there was a statutory nuisance as Mr X did not contact the Council when the nuisance occurred. It was then impacted by COVID-19 when council officers were unable to visit the property to witness anything. The Council states Mr X’s case remains open.

Analysis

20. Based on the documentation provided by the Council I consider there were failings in the way the Council responded to and investigated Mr X’s concerns.
21. The Council states it asked Mr X to keep a nuisance diary and to contact the out of hours service, but I have not received any evidence of this. The documentation provided suggests the Council has made little contact with Mr X in relation to this matter. Officers tried to speak with Mr X once in 2018 and once again in 2019, but when these calls were unsuccessful, they did not call back or follow them up in writing. There is no evidence the Council explained to Mr X how it would consider his concerns, what it would need from him or how it would witness the smoke. Nor did it notify Mr X each time it closed his case.
22. The records suggest Mr X was first advised to call the out of hours service so that officers could witness the nuisance in response to his complaint in June 2020.
23. The Council did not contact the restaurant regarding Mr X’s concerns in 2018 or 2019, and only visited in 2020 in response to Mr X’s formal complaint. I recognise that the COVID-19 restrictions in 2020 mean that council officers will not visit Mr X’s property, but such restrictions were not in place in 2018 or 2019. As it is necessary for an officer to witness nuisance caused by smoke and smell, I would have expected an officer to visit Mr X’s property in 2018 and/or 2019. If the Council is not currently visiting complainants’ homes to witness nuisances, I would have expected the Council to identify alternative methods of gathering evidence.
24. I note that the case remains open, but I consider the failings in the way the Council responded to Mr X’s reports of nuisance to date amount to fault.
25. Having identified fault, I must consider whether this has caused Mr X a significant injustice. Until the Council has properly investigated Mr X’s concerns and been able to identify whether the smoke and smells entering Mr X’s property amount to a statutory nuisance, it is not possible to determine the full extent of any injustice to him.
26. It is clear however that the failings in the Council’s service have caused Mr X avoidable distress and uncertainty and put him to unnecessary time and trouble in trying to resolve the issue.

Agreed action

27. The Council has agreed to apologise to Mr X and pays him £150 in recognition of the distress and uncertainty he has experienced and the time and trouble he has been put to by the Council’s failure to appropriately investigate his reports of nuisance.
28. The Council has also agreed to contact Mr X to explain the steps it will take, and when, to attempt to witness the smoke and smell to determine whether there is a statutory nuisance. (The steps may include, for example, Mr X committing to keep a nuisance diary, and the Council identifying alternative arrangements for witnessing the nuisance.)
29. The Council should take this action within one month of the final decision on this complaint.
30. If the Council’s investigation determines there is a statutory nuisance the Council should consider how the delay in identifying this has impacted on Mr X and take action to remedy any injustice.

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Final decision

31. The Council’s failure to appropriately investigate Mr X’s reports of nuisance amounts to fault. This fault has caused Mr X an injustice.

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Investigator's decision on behalf of the Ombudsman