City of Doncaster Council (21 001 412)
Category : Environment and regulation > Antisocial behaviour
Decision : Upheld
Decision date : 15 Dec 2021
The Ombudsman's final decision:
Summary: Mr C complained about how the Council dealt with his complaints of anti-social behaviour. He also complained the Council failed to complete an impact assessment before moving an individual with mental health and drug and alcohol dependency issues into the property next to his. We find the Council was at fault for its communication with Mr C and the delay in responding to his noise recordings. The Council has agreed to our recommendations to address Mr C’s injustice.
The complaint
- Mr C complained about how the Council dealt with his complaints of anti-social behaviour. He says the Council failed to take his complaints seriously. Mr C also complained the Council failed to complete an impact assessment before moving an individual with mental health and drug and alcohol dependency issues into the property next to his.
- Mr C says he has been forced to sell his property because of the Council’s failure to take action.
The Ombudsman’s role and powers
- 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)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
How I considered this complaint
- I considered information Mr C submitted with his complaint. I have considered the Council’s response to my enquiries, which includes confidential information I cannot share with Mr C or refer to in this decision.
- Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Anti-social behaviour
- Section 2 of the Anti-social Behaviour, Crime and Policing Act 2014 defines anti-social behaviour as conduct:
- That has caused, or is likely to cause, harassment, alarm, or distress to any person.
- Capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.
- Capable of causing housing related nuisance or annoyance to any person.
- Section 17 of the Crime and Disorder Act 1998 places a general duty on councils to take action to combat anti-social behaviour. Councils will have a team to respond to and investigate complaints about anti-social behaviour, liaising with the police and other agencies as necessary.
Statutory noise nuisance
- Councils have a legal duty under the Environmental Protection Act 1990 to investigate complaints about potential statutory nuisances, including noise. For a noise to amount to a statutory nuisance it must do one of the following:
- Unreasonably and substantially interfere with the use of enjoyment of a home or other premises; or
- Injure health or be likely to injure health.
- There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact if a nuisance occurs outside normal working time.
- Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
- If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period to attempt to address the problem informally.
What happened
- This chronology includes key events in this case and does not cover everything that happened.
- Mr C’s neighbour (Mr D) moved into the flat next to his in December 2020. Mr D’s landlord is a housing association. The decision to move Mr D into the flat was a result of a multi-agency plan which was led by the Council.
- Mr C contacted the Council the following day and reported Mr D had damaged the main door to the block of flats. The Council contacted the relevant agencies and asked for the door to be fixed.
- Mr C emailed the Council a couple of days later and complained about the smell of cannabis from Mr D’s flat. The Council responded to Mr C and encouraged him to report any future issues to the police. The Council visited Mr D but could not find any evidence of cannabis use.
- The Council also contacted Mr D’s landlord. It told it about Mr C’s concerns that Mr D was smoking cannabis and playing his music too loud.
- The Council visited Mr D again and asked him not to smoke in his flat and to keep his music turned down. Mr C emailed the Council the same day and said its response would not resolve the issue. He said he was receiving treatment from his GP because of the headaches and nausea caused by the smell of cannabis from Mr D’s flat. He said he wanted to raise the matter as a formal complaint.
- The Council visited Mr D and told him to smoke outside. It also spoke to Mr C. Mr C said the Council was ignoring him and it was not addressing his concerns.
- Mr C emailed a manager at the Council. He said the drugs and noise issues persisted daily. He raised a complaint and asked why the Council allowed someone to live in a communal environment with a known drugs issue.
- The police contacted the Council and said Mr C had reported a further incident of cannabis use from Mr D. The Council visited Mr D the following day but could not smell cannabis.
- The Council responded to Mr C’s complaint. It said Mr D’s support workers visited him and had not seen him smoking cannabis. It told Mr C to report any further issues to the police. It also said it had visited Mr D and told him to keep his music low and it had also provided him with headphones and door stops to prevent his door banging. It told Mr C if he had further problems with loud music, he needed to contact its environmental health department. Finally, it said it could not disclose personal information about Mr D, but there was no evidence of action being taken against him previously for tenancy breaches.
- The Council’s environmental health team contacted Mr C and said it had sent a letter to Mr D and asked him to prevent any noise nuisance. It told him to complete a diary form if the problems continued.
- Mr C emailed the Council and said Mr D’s support workers were aware he was using cannabis. He sent a further email two weeks later and chased for a response. He also said Mr D did not always use his headphones and his door was constantly banging. The Council emailed Mr C and apologised for not responding sooner. It said the issue with Mr D using cannabis was for the police. It also said it would pay for a soft play mechanism to resolve the banging door issue.
- The Council visited Mr D a couple of days later with his landlord. The landlord fixed Mr D’s door.
- Mr C emailed the environmental health team and attached the noise nuisance diary form. He sent further emails the following week and attached videos showing the level of music coming from Mr D’s flat.
- Mr C referred his complaint to stage two of the Council’s complaints procedure. He said he was being forced to sell his home because of the adverse effect the anti-social behaviour was having on his health. He also said he could not accept the Council’s previous statement that it had not witnessed cannabis use. He said Mr D’s support workers were aware he was using cannabis.
- The Council visited Mr D with his landlord. It told him not to have his music too loud and if he did, he needed to use his headphones.
- Mr C emailed the Council and said the police had visited Mr D. He said Mr D confirmed he used cannabis in the flat. He asked the Council and the landlord to take the appropriate action. The Council did not respond. Mr D’s landlord said it was aware of the incident. It agreed to send a formal warning to Mr D, and it said it would continue to complete regular spot checks.
- Mr C also spoke to the environmental health department on the same day. A Council officer agreed to send him a noise app so he could record the loud music. Mr C uploaded three recordings onto the app.
- Mr C emailed the Council the following week and said Mr D was still using cannabis, despite the fact the police had told him to stop.
- The Council visited Mr D with his landlord. His landlord issued him with a warning regarding his tenancy.
- Mr C emailed the Council and Mr D’s landlord again and said while the door banging issue had stopped, the loud music continued as well as the almost daily smell of cannabis. Mr D’s landlord responded and said it would issue a further written warning. The Council did not respond.
- The Council issued its stage two response to Mr C’s complaint. It said because of client confidentiality it could not share personal information about Mr D. However, deciding to place Mr D in the flat followed the correct process. Finally, it said the police had visited Mr D regarding the cannabis use and his support workers reinforced he needed to comply with the law and his tenancy conditions. It said it expected the housing provider to take seriously behaviour that was against the law.
- Mr D’s landlord contacted Mr C. It said Mr D would be vacating the flat within the next few weeks, but it could not provide a date.
- Mr C continued to report further instances of anti-social behaviour in May 2021. The Council did not respond to any of Mr C’s emails. It visited Mr D twice during this time.
- Mr D eventually moved out of the property the following month.
- The environmental health team listened to the recordings Mr C had sent through three months previously. The officer noted that it sounded like Mr C was playing the music himself rather than noise travelling through the walls. The officer called Mr C. Mr C said Mr D had moved out. He said he was not happy with the delay. The officer apologised and said there had been an error with the system and so she did not receive notification of the recordings.
Analysis
- Mr C says the Council failed to complete an impact assessment before moving Mr D into the flat next to his. I cannot provide Mr C with the specific details of the Council’s assessment because of confidentiality reasons. However, I have seen the Council’s thorough assessment and I am satisfied it took the steps we would expect it to. The Ombudsman can only question a decision or process if it was carried out with fault. There is no evidence of that in this case and so I am satisfied the Council acted properly.
- Mr C regularly communicated with the Council about Mr D’s anti-social behaviour. The Council referred Mr C to the police for his concerns about Mr D using cannabis. I find the Council acted appropriately here by signposting Mr C to the appropriate authority. If Mr C is concerned about police inaction, he should raise it with the police.
- In relation to the other concerns Mr C reported, the Council largely tried to address these with Mr D. It visited him regularly and bought him headphones after Mr C complained about loud music. It was also in regular communication with Mr D’s landlord and the police. The landlord issued Mr D with written warnings, visited him at unscheduled times and fixed his door.
- However, I do find there were times the Council failed to respond to Mr C’s emails. It also did not always keep him regularly informed and updated that it was addressing the issues he had raised. While I accept it may not have been practical or proportionate to respond to every email, the Council should have responded holistically to keep Mr C informed. The Council did not have to provide specific details on the action it was taking because of client confidentiality, but it should have updated Mr C in general terms. Its failure to do so caused Mr C frustration.
- Mr C reported numerous incidents of Mr D’s anti-social behaviour throughout May 2021. The Council only addressed this with Mr D on one occasion. While I note Mr D was due to leave the property, the Council should have still made a reasonable effort to address Mr C’s concerns. Its failure to do so is fault which caused Mr C further frustration and upset.
- The Council was also at fault for failing to deal with the noise recordings Mr C submitted before Mr D moved out. It says there was a technical issue. While I note the Council’s comments, it had a responsibility to deal with the noise recordings within a reasonable timeframe. The Council’s failure to do so caused Mr C frustration, and the Council should apologise for this. When the Council eventually reviewed the noise recordings, it said there was insufficient evidence to support the allegation of noise nuisance. Therefore, while the Council was at fault for the delay in dealing with the noise recordings, it is unlikely it would have resulted in a different outcome for Mr C.
Agreed action
- To remedy the injustice caused by fault, by 18 January 2022 the Council has agreed to:
- Provide Mr C with a written apology for the frustration caused to him.
- Pay Mr C £150.
Final decision
- There was fault by the Council, which caused Mr C an injustice. The Council has agreed to my recommendations and so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman