London Borough of Brent (24 003 772)

Category : Environment and regulation > Pollution

Decision : Closed after initial enquiries

Decision date : 17 Jul 2024

The Ombudsman's final decision:

Summary: We will not investigate Mrs X’s complaint about the Council deciding not to action against her neighbours’ cigarette smoke drifting into her garden, and about the noise of their conversations. There is not enough evidence of fault in the Council’s decision-making process about the smoke to warrant investigation. We also cannot achieve the outcome Mrs X seeks. Her complaint about noise is not a valid matter we can reinvestigate and we have not done so.

The complaint

  1. Mrs X lives with her family next to a property let to tenants who smoke cigarettes. She complains the Council has:
      1. decided not to act against the tenants’ smoke drifting onto her property;
      2. failed to deal with noise from the tenants while outside smoking.
  2. Mrs X wants the Council to require the property’s owner to install a smoking area for the tenants to prevent harm to her and her family from the smoke.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
  2. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:
  • there is not enough evidence of fault to justify investigating; or
  • we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

  1. I considered information from Mrs X and the Ombudsman’s Assessment Code.

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My assessment

  1. Mrs X complained to the Council about cigarette smoke nuisance from her neighbours. The Council investigated and an officer carried out a site visit in 2023. They sent an advisory letter to the neighbours. But the officer determined the evidence gathered did not support the existence of a statutory nuisance from the smoking. This meant the Council could not take enforcement action.
  2. It is not our role to act as an appeal process. We cannot question decisions taken by councils if they have followed the right process and considered relevant evidence and information. Officers gathered relevant information to investigate Mrs X’s concerns and considered appropriate law. They found insufficient evidence to allow them to take enforcement action under statutory nuisance law. There is not enough evidence of fault in the Council’s decision‑making process to warrant us investigating. We recognise Mrs X disagrees with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees. In their response to Mrs X, officers explained smoke-free laws in the Health Act 2006 do not apply to domestic settings like private gardens. They also explained Section 82 of the Environmental Protection Act 1990 gives Mrs X the option to make a complaint about the smoke at the Magistrates Court. She may wish to seek legal advice before taking that route.
  3. Mrs X wants the Council to require the neighbouring property’s owner to install a smoking area for the tenants, to stop smoke from affecting her property. The Council has no powers to order the owner to make those amendments. We also cannot order the Council, nor the property’s owner who is outside our jurisdiction, to make those changes. That we cannot achieve the outcome Mrs X wants from her complaint is a further reason why we will not investigate.
  4. Mrs X also complains about noise from her neighbours. She complained to the Council and then to us about their noise earlier in spring 2024. We considered that complaint and closed it about two months later in 2024. We decided an investigation would be unlikely to add to the Council’s own investigation nor result in a different outcome. The email Mrs X has provided with this current complaint which mentions noise is from 2023, several months before her previous noise complaint to us. Given these dates, the email is not evidence of a new noise complaint to the Council. We cannot reinvestigate complaints we have already considered and determined. The noise issue is not a valid matter we can investigate again and we have not done so. If Mrs X has concerns about the Council’s response to reports of noise nuisance since our previous 2024 decision, she may make a new complaint to the Council about it and come to us if dissatisfied with the outcome. The law requires us to give the Council the opportunity to respond to new issues before we can consider them.

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Final decision

  1. We will not investigate Mrs X’s complaint because:
    • there is not enough evidence of fault in the Council’s decision-making process about the smoke to warrant investigation; and
    • we cannot achieve the outcome she seeks from the complaint; and
    • the complaint about noise is not a valid one we can reinvestigate.

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Investigator's decision on behalf of the Ombudsman

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