Summary: Miss X complained about how the Council handled her report of a noise nuisance. We have found fault with the Council for failing to consider Miss X’s mental health needs which caused delays in its investigation and the action taken by officers.

The complaint

1. Miss X complained the Council has not taken adequate action when she reported the noise from a neighbour’s cockerel. Miss X has medical issues which are severely worsened by certain sounds. She said the Council did not take her medical needs or human rights into consideration when it decided to close the case without a satisfactory outcome.

Back to top

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)

Back to top

How I considered this complaint

4. I have considered Miss X’s complaint and have spoken to her about it.
5. I have also considered the Council’s response to Miss X and to my enquiries.
6. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legislation and guidance

Statutory nuisance

7. Section 79 of the Environmental Protection Act 1990 creates a duty on councils to investigate and, where identified, take action to address ‘statutory nuisances’. Under the Act, a statutory nuisance is one which:
• unreasonably and substantially interferes with the use or enjoyment of a home or other premises; and / or
• injures health or is likely to injure health.
8. And which is happening, has happened and is likely to happen again, or is likely to happen in the future.
9. The Act specifies different things which can constitute a statutory nuisance. Some are general, while some can only be a statutory nuisance if they emanate from a particular source.
10. Things which can be a statutory nuisance if they come from a ‘premises’ (which can include both domestic and commercial properties) include:
• noise;
• smoke, fumes or gases; and/or
• artificial light.
11. There are also some things which can be a statutory nuisance under other circumstances:
• any accumulation or deposit;
• any animal kept in a place or manner which causes a nuisance; and/or
• noise caused by a vehicle, machinery or equipment in the street.

Council investigation

12. Councils have a statutory duty to take reasonable practicable steps to investigate when a person living in their area complains about a potential nuisance. We would generally expect to see potential nuisances investigated by an environmental health officer who would collect evidence and then consider whether it supports that a statutory nuisance exists.
13. We have, in the past, said that officers must ‘witness’ a nuisance before they can decide it amounts to a statutory nuisance. There is in fact no such requirement in the Act. However, the decision remains one of professional judgement for officers, and so we would always expect them to make their decision on the basis of objective evidence, and not simply because a complainant says they are suffering from a nuisance.
14. Complainants sometimes say the issue is a nuisance to them because they have a particular sensitivity to it – for example, a person with asthma complaining about fumes or smoke, or a person who works nights complaining about noise during the day. However, there is a long-established legal principle that ‘nuisance’ must be judged on how it affects the average person, not someone who, for whatever reason, is particularly sensitive to it. Officers should always therefore consider whether the issue would amount to a nuisance to the ‘average’ person.
15. We often see councils asking complainants to keep a diary or log of the alleged nuisance for a period of time, usually at the beginning of an investigation. The idea behind this is to allow officers to gain a more detailed picture of when the nuisance is happening and how it is affecting the complainant, so they can judge whether to continue investigating. A diary can also help officers plan when to visit the site if they consider this necessary.
16. Ideally an officer will be able to visit and witness the alleged nuisance first hand. Some councils offer an out-of-hours service, which means officers can attend during the night if necessary – but there is no legal requirement for this and unfortunately it is becoming increasingly rare as budgets are cut. So it can be difficult for officers to witness a nuisance first hand if it occurs outside of normal working hours, or if it is difficult to predict when it is going to happen.
17. For noise nuisances, councils may offer to install noise monitoring equipment at the complainant’s property, if an officer is unable to visit at the right time. This is a recording device which is set to record for a specific interval, and which the complainant can activate when the nuisance occurs. Councils will typically install the equipment for a period of a week or two, then collect it and review the results.
18. It is important we remember that monitoring equipment, of any type, is a means to an end, and not an end in itself. It is not a legal requirement, and, provided we are satisfied a council has taken ‘reasonably practicable’ steps to investigate the alleged nuisance, we should not criticise them simply for not using monitoring equipment as part of an investigation. It is only when there is no other practical way to gather objective evidence, but the council does not seem to have considered using monitoring equipment, that there may be fault.

What happened

Background

19. Miss X has several mental health conditions. She also suffers from misophonia; a disorder in which certain sounds trigger emotional or physiological responses that some might perceive as unreasonable given the circumstance.

Noise reports in 2022

20. In April 2022, Miss X contacted the Council to report that her neighbour’s cockerel was causing her a disturbance. A week later, the Council contacted Miss X. It asked Miss X to keep a log of the noise. Miss X said she was too unwell to do this.
21. The Council acknowledged Miss X’s health concerns and told her it would contact her neighbours to assess the situation. The next day, the Council visited Miss X’s street and carried out noise monitoring. The environmental health officer emailed Miss X to inform her of the visit and asked her again to keep noise diaries. The Council asked the neighbour to be aware and to mitigate the cockerel noise. The neighbour said they do not let the cockerel outside until after 7am.
22. In May, due to Miss X’s health, her father logged the times when the noise was deemed unreasonable. The Council said it contacted the neighbours again to inform them the noise was ongoing and the Council’s ‘warning’ stood. Throughout June, Miss X contacted the Council about various anti-social behaviour issues including the cockerel.
23. In late June, the Council’s notes show that another neighbour contacted the Council to complain about the cockerel crowing early morning (before 7am). The next day, the Council made an early morning visit to Miss X’s street. Officers witnessed the cockerel noise before 7am. The Council once again contacted Miss X’s neighbour. The Council informed Miss X that it would be difficult to determine the noise to be a nuisance between the hours of 7am and 11pm as the loudness and frequency may not be deemed intrusive enough to constitute a nuisance.
24. Miss X informed the Council she was ill and unable to respond to its request for logs and more information. As the Council had not heard from Miss X, it closed the case on 14 July 2022. The Council contacted Miss X the next day, expressed sympathy that she was ill and asked her to contact the Council when she was well enough.
25. In August, Miss X’s father emailed the Council to inform it that the cockerel was still causing Miss X a nuisance. The Council reopened the case. Over the next two months, the Council and Miss X and her father were in regular contact. Miss X’s father requested that the Council install noise-recording equipment as Miss X was too unwell to keep a diary. He said the Council website said this could be done in exceptional circumstances. He also asked for the Council to only contact him about this matter as it was causing Miss X distress.
26. During October, the Council continued to email Miss X. When Miss X did not reply, the Council closed the case. Later that month, Miss X’s father emailed the Council and followed it up with a phone call asking for a response to his email requesting noise-recording equipment.
27. On 25 October 2022, the Council visited Miss X’s street (following a third party complaint about the cockerel). This was between 6.30am and 7.25am. The officer did not hear any cockerel noise.
28. The officer spoke to a passerby who explained they had not heard the cockerel before 7am ‘for a good while’ but during the summer it did crow between 6am and 6.30am for a time.
29. The Council contacted Miss X’s father, apologised for the delay in responding and said it would contact the neighbour again. The officer explained because they had not received any evidence or substantive reports or diary notes that the cockerel noise was a disturbance to Miss X or other homes before 7am or after 11pm, they were going to close the case.

Noise reports 2023

30. Between January and April, Miss X and her father contacted the Council about how it had handled their report of a noise nuisance. The Council noted that it was aware how distressed and unhappy Miss X appeared.
31. The Council contacted Miss X in April, apologised for the delays and said it would look at her case as a matter of urgency. An officer undertook a case assessment of the Council’s investigations and contact regarding this matter.
32. In May, Miss X contact the Council again requesting that the Council came out and monitored the noise from the cockerel. A week later she rang again as she had received no response. At the end of May, two officers visited Miss X’s street and heard the cockerel at 5.36am.
33. A week later, the Council contacted Miss X and said it would make another noise monitoring visit from Miss X’s garden on 6 June at 7.30am if that was convenient. Officers visited with noise-monitoring equipment and discussed Miss X’s complaint with her. A further visit was arranged for July.
34. Five days after the visit, the Council closed its investigation, noting that the officer had verbally updated Miss X and her father during the site visit.
35. In August 2023, the Council wrote to Miss X advising her that the Council did not consider the cockerel noise to be a statutory nuisance.
36. Later that month, Miss X brought her complaint to the LGSCO.

My findings

37. The Council initially investigated Miss X’s report of a disturbance in a proportionate and reasonable manner. An officer visited the site, spoke to the neighbours and asked Miss X to keep a diary of the noise.
38. Miss X had made the Council aware of her mental health problems and inability to keep a log. At this stage, I would have expected the Council to have considered any reasonable adjustments to assist Miss X to access the service. I have seen no evidence that the Council considered this or offered an alternative to diary sheets. This was fault.
39. Despite prolonged reports from Miss X, her father and other neighbours (without a sensitivity to certain sounds), the Council did not escalate its investigation or take more formal action against the cockerel’s owner. At the time of Miss X’s complaint to LGSCO, the disturbance had been present for 16 months.
40. The Council argued that it did not have enough substantive evidence that the noise was a nuisance. It held Miss X responsible for this as she did not keep diary sheets. I have already established the Council was at fault for not offering an alternative to this. Council officers also witnessed the noise before 7am themselves on two occasions. This should have triggered further action against the neighbour.
41. It is obvious how much distress the cockerel sound is causing Miss X. It is also evident that both Miss X and her father have contacted the Council about multiple perceived anti-social behaviour incidents in their area.
42. The Council did not properly consider Miss X’s mental health problems and instead treated her as a difficult customer. I believe this impacted on the Council’s investigation. This was supported by the Council’s admission that officers were reluctant to visit Miss X due to her challenging behaviour and the risk of conflict.
43. The Council recognised that it did not adequately consider Miss X’s mental health conditions when handling her case. The Council said in 2023 it provided staff with refresher training on equality, diversity and inclusiveness, as well as mental health awareness. This was to ensure reasonable adjustments are offered to customers to provide them with the same level of service as others.
44. The Council suggested it could issue an Abatement Notice on Miss X’s neighbours. This would be an interim solution while the Council carries out further assessment of the noise. I cannot include the requirement to issue an abatement notice in my decision statement as this is the Council’s decision to make. I do however believe that Miss X would welcome this action.

Conclusion

45. The Council was at fault for:
• Failing to adequately consider Miss X’s mental health problems and make reasonable adjustments to help her access its services. This caused Miss X additional distress. It also led to delays in the investigation (see below).
• Causing delays in its investigation. By failing to consider Miss X’s mental health and offer alternatives to dairy sheets, the Council did not have enough substantial evidence to take action against Miss X’s neighbour. The delays were also caused by officers not responding to contact from Miss X and her father. All the delays prolonged Miss X’s distress.
• Failing to clearly establish at an early stage who it should have been dealing with (Miss X or her father). This could have ensured consistency in the Council’s communication and alleviated any stress on Miss X.
• Failing to adequately train staff on equality, diversity and inclusion, as well as mental health awareness. This meant that officers formed their own opinions on Miss X which ultimately affected the investigation and the action taken by officers.

Back to top

Agreed action

46. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Miss X and her father for the significant delays they suffered and for the Council’s reluctance to engage face-to-face at the beginning of its investigations.
2. Pay Miss X £300 for the prolonged distress she experienced as a result of the Council’s delays.
3. Install noise recording equipment in Miss X’s home for a minimum of 7 days. I accept this might be more effective as the days get lighter rather than within 4 weeks of my decision. Please consult with Miss X and relevant officers to determine the best time for this.
4. Provide evidence that it provided staff with refresher training on equality, diversity and inclusiveness, as well as mental health awareness.
47. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

48. I have completed my investigation. I have found fault with the Council in how it investigated Miss X’s report of a noise disturbance. This delayed action and prolonged Miss X’s distress.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman