Summary: Ms X complained the Council failed to properly consider noise complaints she made. We found there were failings in the actions the Council took in response to Ms X’s complaints. The Council failed to keep proper records and failed to investigate the source of the noise properly. The Council failed to issue an abatement notice after officers witnessed a statutory nuisance. The Council also failed to maintain the complainant’s confidentiality. In addition, the officer subject to the complaint sent the initial complaint response. To recognise the failings the Council agreed it would apologise to Ms X and pay her £1,400. It also agreed to review its processes.

The complaint

1. Ms X complains the Council failed to properly consider her complaint about noise nuisance. She complains an officer promised to issue an Abatement Notice but this has not happened. She also complained that when officers visited, they had not investigated the correct source of the noise. She complains the noise means she is unable to sleep. It is also causing her health problems.

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What I have investigated

2. My investigation only concerns the noise reports that Ms X raised in her complaint to the Council in December 2018. The reasons for this are set out in the last section of this statement.

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The Ombudsman’s role and powers

3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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 spoke to Ms X, considered her complaint and information she provided. I asked the Council for information and considered its response to the complaint.
6. I sent both parties a draft decision to enable them to comment. I considered the comments of both parties before reaching a final decision.

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What I found

7. Mrs X complains about noise from her neighbours. She says the Council has failed to take appropriate action to address it.

The complaints Ms X made

8. The Council’s records indicate Ms X reported noise from water pipes on 27 April, 4 May, 6 May, 16 June, 25 July, 28 July and 8 August.
9. An officer spoke to Ms X on 27 April and visited but did not witness noise. On 4 May Ms X reported noise online and said she would contact the council in the evening. She did not do this so no action was taken. Ms X cancelled the report she made on 6 May.
10. On 16 June Ms X explained the incidents of the noise were increasing. She stated the noise affected her sleep and her daily routine. An officer visited and heard noise in the communal stair well. However, he stated there was no statutory nuisance inside her flat. The officer noted Ms X would not allow him into the bedroom to assess noise from there.
11. On 25 July an officer visited but the noise had stopped after 20 minutes, so it was not witnessed. Ms X asked the Council to contact the agent who managed the building. Her request was passed to another officer.
12. On 28 July the Council telephoned Ms X but the noise had stopped. An officer also called the managing agents for the block and left a voicemail message.
13. In her complaint Ms X said she spoke to a Noise Team Manager. He listened to a recording she made of the noise and sent officers to witness it. He stated, if they witnessed the noise in person, an abatement notice would be served immediately. Ms X says two officers witnessed an unbearable noise in her bedroom at around 2am.
14. The Council initially told us the Team Manager did not recall the conversation with Ms X and he made no record of the call. However, after we made further enquiries it supplied us with an email from 6 August arranging a visit for the early hours of 7 August. Another email confirmed the outcome. There is no record of the visit on the Council’s systems. The Council believes this is because it was ‘proactive’.
15. The email from Officer A (one of the officers who attended on 7 August) to the Team Manager explained the outcome. It said:

“Proactive done. Arrived 2:05am. The noise started at 2:09am, it kicked off at a low volume that steadily increased to a higher level and was loudest between 02:18am to 2:30am. Then the level started dropping off until it stopped at 02:39am. It sounded like a faulty machinery type noise clearly audible in her bedroom and a nuisance. A sound of water sprinkling in the garden was audible when we put our heads out through the window. This also appears to be on a timer, it is likely to becoming from next door…However, it could be from [Ms X’s building] itself. The managing agents would need to give access to establish what is going on.”

16. On 8 August Ms X complained the noise had occurred for half an hour again from 2:10am. She stated it was to be referred to the managing agents but nothing had happened and the noise just continued. It is not clear from the Council’s records if a visit occurred on 8 August. It appears an officer may have called Ms X and then called the managing agents and left a voice message.
17. Another officer, Officer B emailed the managing agents on 8 August. In the email he stated:

“This service has received noise complaints from……[The email named Ms X as the complainant and it included her full address and telephone number].

The source of the noise is believed to a defective water pump next to her bedroom or water hammer.

Noise Officers visited [Ms X] in the early hours of this morning and witnessed the noise and confirmed it to be a statutory nuisance, under the above mentioned legislation.

I understand that you are the managing agents the property/ies and may be able to assist in either remedying the nuisance or in providing details on whom we should serve an abatement notice.

I would welcome an early response to this matter as the problem is particularly serious and is disturbing sleep.”

18. The managing agents replied to Officer B that day. They stated Ms X told them the noise may be caused by the boilers having a lack of pressure. It asked the Council to confirm if the Council also held this view. The Council did not provide its response to the managing agent.
19. The information Ms X provided when she complained made it clear that she believed the noise occurred whenever her neighbour used water supplies at their property. The visit conducted by officers on 7 August corroborated Ms X’s view that this was the likely cause of the noise. They noted the sprinkler was being used at the time the noise occurred and that the noise was a statutory nuisance.
20. On 10 August Officer B visited the neighbour Ms X believed to be causing the noise. He noted they had a sprinkler on a timer. His notes stated “but mains water fed and goes under building not up the building. Doubtful this is the problem.” He noted the layout of the property was very confusing.
21. The Council initially told us that the sprinkler system was highly unlikely to be the source of noise. This was because it had no mechanical parts other than timer valves. It stated the water pipes feeding the sprinkler were under the floor of the ground floor flat and did not go up into the building. It stated the complainant lived higher in the building. The Council said, officers did not carry out a test to see if noise was created when the water supplies were used by Ms X’s neighbour. It says this was unnecessary because no noise was being caused by the sprinkler system Officer B saw.
22. The Council’s systems show the next report from Ms X was logged in the afternoon of 2 September. An officer visited but Ms X was at work. They spoke to Ms X who stated her neighbour had been away for two weeks and there had been no noise. They returned that day, and the noise re-started immediately. The noise was an ongoing problem.
23. On 5 September, days after a further report from Ms X, Officer B closed down the case that was opened on 8 August. His note on file stated it was closed because he had not witnessed a nuisance himself. He noted that two other officers had witnessed a nuisance, but the matter could be investigated by the neighbourhood team or when Ms X made further reports.
24. Ms X made further reports about the water pump noise on 8 September, 9 September, 12 September, 29 November, 30 November and 4 December.
25. On 8 and 9 September an officer called Ms X but the noise had stopped, so a visit was not carried out. The Council noted “Water hammer allegedly occurred after perpetrator used his garden sprinkler”. On 12 September an officer called Ms X following her report but got no answer. They left a message for Ms X to contact the Council if the noise was still ongoing.
26. In Ms X’s complaint on 29 November, she reiterated the problem was noise at anti-social hours, at regular times, believed to be caused by a water pump. The officer who contacted her (Officer C) recorded the following:

“Telephone call, spoke to customer at length an ongoing problem. Noise not happening at the time of the call. Noise happens early in the morning around 5:50am. Customer said [Officer A] witnessed the noise and [Team Leader] had said an abatement notice was going to be served. Checked history could not find the abatement notice. Customer advised to call back when being disturbed.”

27. On 30 November and on 4 December Ms X made complaints about the continuing noise early in the morning. She repeated that a nuisance had been witnessed by Officer A and another officer and she expected an abatement notice to be served. On both occasions the noise was not still occurring at the time of the Council’s call. On 30 November the records state “Emailed [Officer A] and [Team Leader] to contact and update customer on any proposed actions.” The Council provided evidence that an email was sent to Officer A and the Team Leader but no evidence that any contact was made with Ms X to follow this up.
28. On 4 December, the notes state “Noise had stopped spoke to [Team Leader], says noise has been witnessed but source was not identified. Managing agent has been difficult to provide access to all the apartments to find source.”
29. On 10 December Ms X complained to the Council. She stated she was having a breakdown from the unacceptable noise. She stated she was woken up at around 2am every day by noise which she believed to be coming from the neighbour’s property.
30. Ms X’s complaint stated her neighbour watered her garden in the early hours of the morning, every morning. The noise occurred at that time. She stated the noise also happened at 5am, then 6pm and 8pm. She believed this may be when her neighbour was running a bath. Ms X told us the noise was a repetitive banging noise. She sent us a recording of this. In her complaint to the Council she stated it may be related to a water pump or loose pipes and it started after around 15 minutes of use.
31. She complained the Team Manager sent two officers in August in the early hours or the morning, they had witnessed a nuisance. He promised if they witnessed a nuisance, an Abatement Notice would be served. However, the Council still had not done this. Ms X explained when her neighbours were away the noise stopped, so she felt her neighbour should be made to repair or exchange her water pump.
32. The Team Manager responded to the complaint. He acknowledged there was a noise source causing disturbance but when officers visited the garden flat they had been unable to identify any equipment that could give rise to noise that would be audible. The Council did not dispute there was unbearable noise but stated they had to establish the source before an abatement notice could be issued. The Council stated it would be happy to carry out further visits and to investigate the garden flat further, but an officer would also need to access Ms X’s flat.
33. Mrs X complained further. She felt the response to her complaint had been obstructive. She set out again clearly what she considered to be the source of the noise and when it occurred. She said it was not a flat in her building, the noise came from the neighbouring property which adjoined theirs. She explained again that the noise stopped whenever they were away. She felt it was outrageous that the Council needed further access to her flat. She noted officers already witnessed a statutory nuisance affecting her and the source was not her flat.
34. The Council responded further in April 2019. The Council explained how it investigated noise complaints. It stated when reports are received officers will check if the noise is still ongoing, if so, they will visit. If noise is witnessed to a statutory nuisance level, an abatement notice will be issued.
35. The Council’s response to Ms X stated officers had reviewed evidence provided by the noise team. It stated on 4 December two officers visited and heard noise. However, they were unable to locate where the noise came from. The Council stated before they can take action they have to establish the cause. Because they couldn’t identify the source they offered to return. They made arrangements for an officer to visit to carry out further investigations. They noted that locating the source of noise is not straightforward. The Council’s response ignored the actual witnessing of statutory nuisance in August.
36. The Council noted no further noise reports had been made since 23 January and it considered correct processes had been followed. Mrs X came to the Ombudsman as she remained unsatisfied.
37. Since Ms X’s complaint to the Ombudsman she has continued to make noise reports about noise that apparently occurs when water supplies are being used in a neighbouring property.
38. While we were considering Ms X’s complaint the Council identified a problem with a water tank that it believed to be the source of the noise. The tank served the neighbours that Ms X had repeatedly referred to in her complaints. The Council provided some email correspondence with the neighbour in August confirming they were happy to allow inspection of the tanks and to make some arrangements for this. In another email from the neighbour to the Council, they noted there had been no noise at the time of an officer visit in 2019, but did not dispute that the pipes do make noise from time to time.

Legislation & Good Practice Guidance

Environmental Protection Act 1990

39. The Environmental Protection Act 1990 states that noise emitted from premises, including land, can be a statutory nuisance. If someone living in a council’s area complains about a statutory nuisance, the council must ‘take such steps as are reasonably practicable’ to investigate the complaint.
40. If a council finds there has been or is likely to be a statutory nuisance, it must issue an Abatement Notice.

Council Policy

41. In response to our enquiries the Council told us it defined Statutory Nuisance as follows:

“A statutory nuisance is the substantial interference of with someone’s quiet enjoyment of their property as assessed from a habitable room. A habitable room is either a bedroom or living room (not a kitchen or bathroom).

42. The Council also provided us with a copy of its policy and the process officers should follow to consider noise complaints. The policy did not state that a statutory nuisance could only be assessed from a habitable room. The Council policy stated when a noise complaint was received officers should check the Council records. If a call back has been requested it must be made within 45 minutes. If the noise is still happening, they should visit and assess the situation form the affected rooms. If the customer declines a visit they must be advised the Council’s powers will be severely reduced and, most likely the best that will be achieved is an informal request to reduce the nuisance.
43. The Council’s policy states “you must keep the customer’s identity confidential”.
44. The policy sets out the need to make notes in a notebook for ALL actions to be recorded on the council’s systems and, if a nuisance is witnessed, reference should be made to the standard enforcement procedure.
45. The Council told us it does not use noise monitoring equipment or ask people to complete noise diaries. It stated they would have been of no assistance in this case.

Analysis

46. There has been significant fault by the Council in the way it responded to Ms X’s noise reports.

How the Council investigate the complaint

47. There is clear evidence that officers did witness a statutory nuisance from Ms X’s bedroom on 7 August. They established a noise that officers considered serious, at unsociable hours. The noise continued to be reported on a regular basis by Ms X. She repeatedly told other officers about Officer A’s visit, but this was largely ignored. When officers agreed someone would follow this up, it does not appear that this happened.
48. Having established there has been or is likely to be a statutory nuisance, the Council has a duty to serve an abatement notice. The Council has not served a notice. This was fault.
49. The Council argued the source of the noise could not be established, and this is what prevented it serving a notice. However, I found it failed to take reasonable steps to establish the source. I say this because Ms X’s repeated reports about the noise to the Council had identified the likely cause. This was the use of water by her neighbours at regular times of the day, causing noise from pipes or other infrastructure. The Council failed to properly consider or investigate this.
50. Officer B was aware that his colleagues had established a Statutory nuisance. His email of 8 August confirmed this. Although he raised it with the managing agents, there appeared to be little by way of follow up to test what the source was and to identify who to serve an abatement notice to. He closed the case in early September while Ms X was still reporting the noise.
51. Further, Officer B’s email to the managing agents included Ms X’s full name and contact details and announced her as the complainant. The Council’s stated policy is to maintain the confidentiality of complainants, so this was further fault. The Council says Officer B believed he may have obtained Ms X’s consent to release her personal information in a telephone call. There is no evidence of this, and it would still have been outside the council’s policy to reveal her identity.
52. Another officer visited Ms X’s neighbour in August but stated the neighbour’s sprinkler system could not be noisy in itself, so dismissed it. Ms X had been clear that it was use of water supplies generally that caused the noise. The sprinkler being an example of this use – it was not purported to the causing the noise in itself. So, what she said was not properly followed up by officers.
53. The officers who established the nuisance on 7 August reported it back to their team manager by email, but no-one logged it properly on the Council’s systems. When Officers witnessed a statutory nuisance it was key decision. So, the failure to properly record it was further fault.
54. The process followed by the Council means one of a number of officers may pick up reports. Under this system there is all the more need for accurate records to be maintained. Without proper records, the other officers picking up Ms X’s continuing noise complaints were not clear what had already happened. Officer A’s report to the Team Manager confirmed a potential link between the sprinkler and the noise. She witnessed the sprinkler was running when the noise occurred. So, had this been logged properly, the Council’s investigations would have been better informed.
55. While I understand the Council would ideally want officers to witness a nuisance, in my view it dismisses the use of diaries and monitoring equipment too readily. There were issues with officers getting to Ms X’s property quickly enough to witness the noise, yet it occurred on a regular basis at unsociable hours, so its impact was potentially significant. Diaries and recordings can help identify trends, which can help identify noise sources.
56. In 2019, over a year after the Council witnessed a statutory nuisance at Ms X’s property, the Council told us it suspected the issue is related to water tanks in her neighbour’s property. Ms X’s neighbour also accepted at times the water pipes could create noise. So, the Council is now presently investigating. If its earlier investigations had not been flawed it seems highly likely that it would have established the issue far earlier. It follows that Ms X would not have suffered the disturbed sleep and impact that she has.
57. On balance it seems likely the noise she suffered could have been largely avoided if the faults we identified had not occurred.

The Council’s response to our enquiries

58. The Council’s initial response to our enquiries was inaccurate in a number of ways. It told us officers had not witnessed a statutory nuisance, only some noise in common areas of Ms X’s building. This was evidently incorrect. It was at odds with a case record from 8 August referring to two officers witnessing a statutory nuisance. At that time the Council told us Officer B said he was referring only to what Ms X had told him. This seemed implausible given the way his email was worded and his suggestion that the Council was looking to issue an abatement notice. The Council later supplied the emails from 7 August evidencing that its original response to us had been flawed.
59. The Council also suggested that statutory nuisance could only be assessed from a habitable room (living room or bedroom). It is unclear why the Council suggested this was an appropriate definition of Statutory Nuisance. It is not the definition in law or in the Council’s policy. The Council was not clear about where the definition it provided had come from. The law does not limit assessment of statutory nuisance to a habitable room. Council’s may consider the extent to which a noise affects sleep or impacts someone’s health. This may be lesser or greater if the noise affects different parts of a property, but a blanket policy that statutory nuisance is only possible in a habitable room is not appropriate.

Complaint Handling

60. The Ombudsman’s guidance on good complaint handling states that to be fair to complainants (and council officers subject to complaints) it would generally be inappropriate for an officer subject to a complaint to be asked to respond to it. Ms X’s complaint was about how officers and the team manager had dealt with her case. However, the team manager that was subject to the complaint responded to it at the first stage of the complaints process. This was inappropriate and also represents fault.

Agreed action

61. Ms X has suffered the impact of noise for over a year that, on balance, should have been subject to an Abatement Notice. To recognise this the Council agreed to pay her £1200. To recognise the time and trouble she spent pursuing her complaint the Council agreed to pay her an additional £200.
62. The Council agreed to continue to take action to confirm the source of the noise at Ms X’s neighbour’s property urgently. It allocated staff to do this. Once it has established the source, and if it considers the source has, or is like to create a statutory nuisance, it agreed it would serve an Abatement Notice to require the noise to be abated.
63. We recommended the Council should review its processes and procedures in the light of this decision. Its review should include:
• Ensuring officers are clear about the correct definition of a statutorily nuisance and what steps officers should take to establish the source of noise nuisances.
• What records are kept for statutory nuisance complaints, the detail of those records and how they can be accessed by all officers to inform them of the history of cases.
• Consideration of the use of diary sheets and noise recording machines.
• Re-training or refreshers for officers about who should respond to complaints.
• Re-training or refreshers for officers about the need to maintain a complainant’s confidentiality.
64. At the time of our decision the Council confirmed that a restructure had occurred and a number of new processes and procedures had been implemented to improve its processes.

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Final decision

65. There was fault by the Council that warrants a remedy to the complainant. The Council agreed to take the action we recommended so I have now completed my investigation and closed my file.

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Parts of the complaint that I did not investigate

66. Ms X’s complaint to the Council was about a noise early in the morning and at other times which she believed to be caused by a water pump or pipes. The Council’s records show Ms X had raised construction noise in separate reports earlier in the year.
67. Before someone brings a complaint to the Ombudsman, they should give the Council the opportunity to consider the issues of concern through it’s complaint process. Ms X’s complaint only raised the issue of noise she believed to be caused by water pipes. My investigation is limited to the issues raised in her formal complaint.

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Investigator's decision on behalf of the Ombudsman