Summary: Ms X complained the Council has failed to take action against her neighbour, who installed a woodburning stove. Ms X said her neighbour used the stove before the installer signed it off, so the installer should be prosecuted. Ms X complained she had to purchase air monitoring equipment, or she would have died. Ms X would like the Council to create an out of hours service to deal with issues like this. She would also like the Council to take action against the engineer who installed the stove and refund the money she spent on air monitoring equipment. The Council was not at fault.

The complaint

1. Ms X complained the Council has failed to take action against her neighbour, who installed a woodburning stove. Ms X said her neighbour used the stove before the installer signed it off, so the installer should be prosecuted. Ms X complained she had to purchase air monitoring equipment, or she would have died. Ms X would like the Council to create an out of hours service to deal with issues like this. She would also like the Council to take action against the engineer who installed the stove and refund the money she spent on air monitoring equipment.

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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)

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How I considered this complaint

3. I read Ms X’s complaint and spoke to her about it on the phone.
4. I considered information provided by Ms X and the Council.
5. Ms 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

Background information

6. Under the Environmental Protection Act 1990 (EPA), Councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
7. Typical things which may be a statutory nuisance include:
• smoke from premises
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. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
9. HETAS is a not for profit organisation offering a competent person scheme for installers of biomass and solid fuel heating, registration for retailers and chimney sweeps and approval of appliances and fuels.

What happened

10. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
11. Ms X’s neighbour, Mr Y had a wood burning stove fitted at his property in February 2022.
12. The following week Ms X contacted the Council to inform them Mr Y was using his woodburning stove without a HETAS approved installer signing it off. Ms X complained the engineer had not installed the chimney to the correct height and this resulted in smoke entering her property.
13. The Council sent a building control officer to Mr Y’s home at the start of March 2022. The officer reviewed the site and confirmed works were being carried out by a registered and competent professional. The officer ruled there was no role for the Council.
14. The HETAS records show the installation, with a higher chimney, was completed four days after the officer’s visit.
15. Ms X complained to the Council at the start of May 2022. She complained about the response time of the Council when she informed it of the wood burning stove next door and the way the Council accepted complaints. She also complained about the investigation the Council had carried out and the way the issue was resolved. Ms X wanted the installer prosecuted, removed from the list of approved HETAS installers and the Council to visit her home when the stove was burning.
16. The Council responded at the end of May 2022. The Council accepted its response had been slightly over its three-day standard response time due to annual leave and vacancies in the department. The Council apologised. The Council said it would consider an online form to allow complaints to be submitted on its website. The Council advised Ms X it visited Mr Y’s property and confirmed it was an approved appliance, so it was permitted in the smoke-controlled area. The Council added the entire installation, though incomplete, was being completed by a HETAS registered professional and building control involvement was not appropriate. The Council reminded Ms X the HETAS scheme is a government scheme so the Council cannot remove registered installers.
17. Ms X requested the Council escalate the complaint to stage two in June 2022. She said she could have died due to Mr Y using the stove before it was signed off. Ms X advised the Council she had spent £700 on air quality monitors she felt the Council should pay for.
18. The Council responded to the stage two complaint in August 2022. The Council repeated a building control professional visited Mr Y’s property and confirmed the work was being completed by a HETAS registered professional who signed off the installation after the visit. The Council advised Ms X it would only take action to prosecute if it was satisfied beyond reasonable doubt any offence had taken place. The Council stated the inspecting surveyor was not of the opinion any offence by the fitter had taken place. The Council advised Ms X it is not responsible for monitoring the air quality in her home and would not pay for the air quality monitoring equipment.
19. Ms X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Ms X would like the Council to create an out of hours team to respond to issues quickly, the installers to be prosecuted and removed from the HETAS register and for the Council to pay for her air quality monitoring equipment.
20. In response to my enquiries the Council provided the complaints and its responses.

My findings

21. HETAS is a government approved scheme. The Council has no control over the actions of HETAS or the professionals it registers for installations. We cannot achieve what Ms X wants regarding removal of certified installer status or any prosecution of the installer.
22. The installer signed off on the installation in March 2022. Any stove use prior to this sign off is a civil matter between Ms X and Mr Y which the Ombudsman will not comment on.
23. The Council acknowledged a small delay relating to its target timescale in responding to Ms X’s initial contact. It has apologised for this. I consider the apology reasonable as if the Council had visited earlier, I do not think the outcome would have been different. The delay was so minor I do not consider it merits a finding of fault.
24. We cannot achieve Ms X’s desired outcome of the Council setting up an out of hours service.
25. The Council informed Ms X it would not refund her the money she spent on air quality monitoring equipment as she chose to purchase the equipment. I have seen no evidence the Council was at fault. Any injustice to Ms X has not been caused by actions of the Council. There are therefore no grounds on which to make a recommendation the refund should be made.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman