Summary: Mr X complains about the Council’s handling of his reports of an unpleasant odour emanating from a neighbouring property. There was fault by the Council because it prematurely closed Mr X’s complaint before considering the full scope of its powers. However, the identified fault did not cause Mr X significant injustice.

The complaint

1. I refer to the complainant here as Mr X. Mr X complains about the Council’s handling of his reports of an unpleasant odour emanating from a neighbouring property.
2. Mr X says the Council has not taken any action to discover the source of the smell or bring an end to it.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint,
• it would be reasonable for the person to ask for a council review or appeal.

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

4. 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

5. I examined the complaint and background information provided by Mr X and the Council. I made enquiries of the Council and considered the information it provided.
6. I sent a draft decision statement to Mr X and the Council and invited the comments of both parties on it. I considered the Council’s response.

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What I found

7. The Council’s housing action team is a part of its Environmental Health and Consumer Protection department. Mr X’s reports of unpleasant odours was passed to the housing action team in October 2020.
8. The housing action team did not visit the property in question. This is because Mr X had informed them the property owner had mental health difficulties. The team decided the property in property was not filthy or verminous based on information obtained from other teams. The team decided the matter of the odour should be pursued by mental health professionals working with the homeowner.
9. The housing action team closed the enforcement investigation in December 2020.
10. Mr X complained formally about the decision to close the investigation in July 2021. In its complaint response, the Council accepted the unusual nature of the case warranted a diary review instead of closure. The Council apologised for the error.
11. The Council opened a new investigation into the odour in September 2021. The investigation is ongoing. The Council is presently looking into whether leaks from a faulty central heating system form the source of the odour.

Finding

12. I find fault by the Council because it did not explore the full scope of its powers before closing the initial enforcement investigation in December 2020.
13. The Environmental Protection Act 1990 refers to smells from “any premises in such a state as to be prejudicial to health or a nuisance” and it is in this vein that the Council considered whether the subject property was filthy or verminous.
14. The Council also has antisocial behaviour powers to enable it to consider whether the odour is causing nuisance and annoyance. It does not appear to have considered those powers before December 2020. The Council already accepted the matter was prematurely closed in December 2020.
15. But the Council has been constrained by the homeowner’s mental health difficulties. And it is right that the Council takes account of those difficulties in its dealings with the homeowner.
16. At this stage, the Council is taking informal action and seeking to work with the homeowner and other agencies. I am satisfied this is the correct path to take presently. The Council should however keep in mind the full scope of its powers should the present course prove ineffective in stopping the odour. It should also keep Mr X informed of what it is doing on the matter.
17. I find fault by the Council. And the injustice to Mr X? There was a period following closure of the initial investigation when no action was taken. However, given the mental health difficulties of the homeowner I cannot conclude, on the balance of probabilities, that the matter would have been resolved satisfactorily in that period.
18. I do not find Mr X suffered significant injustice because of the identified fault in this case to warrant further pursuit of the matter now by the Ombudsman.

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Final decision

19. I found fault by the Council. However, the fault did not cause Mr X significant injustice to warrant further pursuit of the matter by, or a remedy from, the Ombudsman.

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Investigator's decision on behalf of the Ombudsman