Summary: We will not investigate this complaint about how the Council investigated reports of an odour from a restaurant. There is not enough evidence of fault to justify investigating.

The complaint

1. Ms X complained the Council failed to properly investigate her reports of odour from a restaurant. She said the Council had not followed the relevant guidance for considering the odour. She said the Council did not explain its complaint process and instead directed her to the courts. Ms X wants the Council to investigate the nuisance further.

Back to top

The Ombudsman’s role and powers

2. 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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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.

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

Back to top

How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

6. The Council has a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Government guidance recommends councils usually use two human ‘sniffers’ to assess complaints about smell.
7. Following Ms X’s reports of odour in September 2021, the Council:
• Completed two visits to Ms X property with two officers in October 2021 and June 2022.
• Provided Ms X with its out of hours contact details she could contact if the odour worsened.
• Contacted the restaurant about its air filtration system. The restaurant confirmed its filters were regularly cleaned.
• Referred the matter to its Environmental Health Service. It completed an inspection of the restaurant and were satisfied with its operation.
8. The Council wrote to Ms X in July 22 and said it did not consider the odour it has experienced during visits to her property strong enough to be a statutory nuisance. It provided information about how Ms X could take legal action against the restaurant.
9. Although Ms X is unhappy with the outcome of the Council’s investigation, we will not investigate this complaint. That is because there is not enough evidence of fault in the steps the Council took to investigate her complaint. We would not be critical of the Council for providing information to Ms X about her right to take legal action against the restaurant herself. The Council has confirmed it will respond to further reports of smell nuisance.
10. Ms X is also unhappy with the Council’s complaint handling. It is not a good use of public resources to investigate complaints about complaint procedures where we are not looking at the substantive matter.

Back to top

Final decision

11. We will not investigate Ms X’s complaint because there is not enough evidence of fault to justify investigating.

Back to top

Investigator's decision on behalf of the Ombudsman