Summary: We will not investigate Mrs X’s complaint about how the Council investigated reports of smoke pollution. We are unlikely to find fault in the Council’s decision and Mrs X has not been caused any personal injustice.

The complaint

1. Mrs X complained the Council has failed to act on her reports of smoke pollution from a street food business on her local high street.
2. She says the smoke is toxic and harmful to public health.

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The Ombudsman’s role and powers

3. We investigate 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 continue 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, (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. 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)

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How I considered this complaint

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

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My assessment

7. In April 2024, Mrs X complained to the Council about smoke from a street food business on her local high street.
8. Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Councils rely on suitably qualified officers to gather evidence.
9. The Council says it met its duty and investigated Mrs X’s report, including making two site visits where no smoke was seen. The Council said the fuel type used would be likely to cause smoke but the area where the business traded would allow it to naturally disperse. The Council said it was not a statutory nuisance because it did not meet the test of a reasonable person of average expectations, and it had no other complaints about smoke from the business.
10. The Council said it also considered if it should impose a street trading condition. It decided not to because the fuel used was needed for the business to run. It also said any smoke produced was not a public health concern as pedestrians in the area were transient.
11. The Council said it wrote to Mrs X and advised her of its decision and the reasons for it.
12. In its complaint responses to Mrs X the Council apologised for some missing communications. However, it said its response in April 2024 had clearly explained its decision and why there was no need for further investigation.
13. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a person disagrees with the Council’s decision.

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Final decision

14. We will not investigate Mrs X’s complaint because we are unlikely to find fault with the Council’s decisions. And we are unlikely to find the Council has caused Mrs X any personal injustice.

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Investigator's decision on behalf of the Ombudsman