Summary: Mr B complained that the Council had failed to take action to investigate a boiler flue in the neighbouring property which appeared to be too close to his boundary. It has also delayed in responding to his complaint and failed to keep in contact with him. We have found fault causing injustice. We agree with the Council’s proposal to investigate the flue now. The Council has also agreed to apologise to Mr B and pay him £150.

The complaint

1. Mr B complained that the City of York Council (the Council) failed to take any action to resolve the issue of the flue in the neighbouring property which is right on his boundary. Despite promising to contact him with an update in March and July 2024, Mr B has heard nothing from the building control department. This has caused him frustration and distress.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with an organisation’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

4. I considered evidence provided by Mr B and the Council as well as relevant law, policy and guidance.
5. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Building regulations

6. Building regulations state that external gas boiler flues should be positioned a minimum of 600 mm from an adjacent boundary.
7. A Gas Safe registered engineer who installs a new appliance should notify the local council of the work within thirty days. The Council will then provide the homeowner with a building regulations compliance certificate.

What happened

8. In December 2023 Mr B complained to the Council about nuisance from fumes from a boiler flue from the neighbouring property. He said the flue was positioned right on his boundary in breach of the building regulations. The Council said it would look into it and get back to him. He is elderly and has health problems which he was concerned were exacerbated by the fumes.
9. He complained again in March 2024 as he had received no response. The Council treated it as a stage two complaint.
10. It sent him a response in July 2024 saying that the building control team had spoken to his neighbour on a number of occasions and obtained the gas safety certificate from the person who installed the flue. It said a building control officer would be in touch as soon as possible with their findings. It apologised for the delay which it said was due to a backlog of work in the building control team.
11. Mr B complained to us in September 2024 as he had still not received a reply.
12. In response to my enquiries the Council said the building control officer had been trying to get a copy of the gas certificate but without success. It acknowledged it had not contacted Mr B, and it apologised for that failure. It said two building control officers had previously visited the site and considered the flue was acceptable, but both had now left the Council. The new building control inspector wanted to investigate the situation further. It proposed to investigate the flue, obtain the necessary information from Gas Safe and assess if any further action was required. It said it would do this as a priority within the next month and keep Mr B up-to-date with progress.
13. It also said the backlog of work was much reduced and it was continuing to recruit new staff to improve the situation.

Analysis

14. The Council has delayed for over a year in responding to Mr B’s straightforward request to investigate a boiler flue which did not appear to be the requisite distance from his boundary. While it may be considered a less significant priority for the Council’s building control department, it should have investigated the situation, reached a conclusion as to whether any further action was necessary and informed Mr B. It did not do so. This was fault.
15. It also has no records to show what the previous officers concluded when they visited the property. This is also fault which means a fresh investigation is now required.
16. The Council also took too long (over three months) to respond to Mr B’s complaint and then did not ensure the actions were carried out. This was further fault.
17. Mr B has been caused frustration and distress by the delays in addition to time and trouble in complaining to us.

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Action

18. I welcome the Council’s apology and proposal to take action now. I recommended that the Council, within one month of the date of my final decision:
• investigates the flue, decides if any further action is necessary and keeps Mr B updated regularly;
• if any further action is necessary, it should provide Mr B with details and a timeline; and,
• apologises to Mr B in writing and pays him £150.
19. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

20. I find fault causing injustice. I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman