Summary: Mr and Mrs X complained about the Council’s decision to place a noisy resident in supported living accommodation near their home and the Council’s delay in resolving the noise nuisance. There was no fault in the Council’s actions.

The complaint

1. Mr and Mrs X complained about the Council’s decision to place a noisy resident in a supported living property for young people with learning difficulties, near their home. They also complain about the Council’s unreasonable delay in resolving the noise nuisance which was disturbing and alarming and was significantly affecting them.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), 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 have spoken to Mr X and considered the information he provided. I have considered the Council’s response to my enquiries and the relevant law and guidance.
6. I gave Mr and Mrs X and the Council the opportunity to comment on a draft of this decision. I considered the comments I received in reaching a final decision.

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What I found

Legal background

7. The national transforming care programme is all about improving health and care services so people can live in the community, with the right support and close to home. It aims to improve quality of life through empowerment, choice and control, and to reduce the number of individuals placed in more restrictive settings which are inappropriate for their needs.
8. In line with the national programme, the Council’s learning disability strategy aims to enable people with learning disabilities to have more choice and control over their lives. It aims to enable those with learning disabilities to make choices about where they want to live, to support them and their families with making and implementing their decision and to enable them to live as independently as possible.
9. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved. Where local authorities determine that a person has eligible needs, they must meet those needs.
10. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.

Noise nuisance

11. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate a potential ‘statutory nuisance’. For noise to be a statutory nuisance it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
• injure health or be likely to injure health.
12. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. In evaluating the evidence the Council will consider factors such as the timing, duration, and intensity of the alleged nuisance.
13. 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.
14. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
15. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance. The local district council has this duty in Oxfordshire, not the County Council.

What happened

16. A care provider has supported people at the supported living placement for around 10 years. The care provider has also provided some support to Mr Y in his previous placement.
17. Mr Y has a severe learning disability and does not use verbal speech. Mr Y communicates using signs, points of reference and by making some sounds. Mr Y’s needs assessment makes reference to occasional shouting. Continual shouting was likely to indicate he was in pain.
18. In March 2019, following consultation with health the Council and Mr Y’s relatives, the care provider assessed Mr Y and decided it could meet his needs. He moved into the supported living placement later that month and lived there with two other residents. The support plan completed by the care provider in June 2019 noted Mr Y could shout a lot when calm and when unhappy.
19. The Council reviewed the placement in late June 2019 and found Mr Y appeared settled. A multi-disciplinary meeting in early July 2019 noted Mr Y had settled well.
20. In July 2019 Mr and Mrs X complained to the care provider about screaming, shouting and shrieking from one of the residents. Mr and Mrs X met with the care provider. Following this they reported their concerns to the County Council and also reported the noise to the District Council’s Environmental Health Department.
21. The Council responded to Mr and Mrs X’s complaint in late July 2019. It could not provide specific details about the residents but said the care provider was looking at taking the individual concerned out in the community as much as possible to help reduce the instances of noise at the property. The care provider was also looking at ways to improve noise insulation at the property. It said it would look at their concerns again if the District Council found the noise was unreasonable.
22. Mr and Mrs X responded to the Council in August 2019. They reported that shouting occurred early in the morning until Mr Y was taken out by the care provider and in the evening when he returned. They sent a further email later that month reporting shouting and screaming over the weekend which was impacting on their quality of lives and mental health.
23. The Council responded to Mr and Mrs X’s complaint in September 2019. It said the care provider had received a letter from the District Council Environmental Health Department suggesting the noise may be a statutory nuisance. It reported it had met with the District Council and care provider to discuss options for noise reduction. It explained there was an ongoing effort to address the issue but it would take time. It needed to find a solution to satisfy all parties but which recognised the rights of the residents in the property. It assured Mr and Mrs X dealing with the issue was a high priority.
24. The District Council investigated the noise and met with an Occupational Therapist from the Council in September 2019 to discuss the steps that could be taken to reduce the noise. This included taking Mr Y out on a daily basis and physical works to the building.
25. Mr and Mrs X remained unhappy and continued to express concern the care provide had accepted an individual who was known to cause a noise nuisance. The Council responded to Mr and Mrs X in October 2019. It reiterated it was working with the care provider and District Council to try to find an acceptable solution.
26. In November 2019 the District Council served an abatement notice on the care provider. This gave the care provider six months to comply. The care provider applied for planning permission to build an extension and install sound proofing. The Council approved the planning application in December 2019. Alongside this, in late 2019, the care provider identified a new property that in the long term would be more suitable. It purchased the property in January 2020 and a multi-disciplinary meeting decided moving Mr Y to the alternative accommodation was the best option to address the noise nuisance.
27. Mr and Mrs X remained unhappy and complained to the Ombudsman.
28. The care provider only had sufficient resources to either carry out the alterations or renovate the new property. It decided to renovate the new property and to move Mr Y permanently. It had found an alternative property but says the COVID-19 pandemic led to delays in renovating and adapting it due to labour and material shortages. Mr Y moved to the alternative property in October 2020.

Findings

29. Mr and Mrs X were disturbed by a statutory noise nuisance caused by a resident at the supported living placement and this had a significant impact on them. It is the District Council’s responsibility to act on complaints of noise nuisance and to take enforcement action. My role is to consider whether the County Council has acted with fault in the way it reached the decision to place Mr Y in the supported living placement and in how it responded to Mr and Mrs X’s complaints.
30. The Council has a duty to meet Mr Y’s needs. There is no requirement for the Council to specifically assess the potential noise caused by an individual in deciding where they live. However, we would expect a council to consider the likely impact on other residents if it had previous concerns about an individual’s behaviour.
31. The Council has provided me with copies of Mr Y’s needs assessments, risk assessments and care plans. These show no concerns were raised previously about Mr Y making loud noises that were problematic or would require intervention. There is no evidence to show the Council could have reasonably foreseen that Mr Y’s behaviour would be a statutory noise nuisance when he moved to the supported living placement.
32. Mr Y did not have capacity to decide where he lived. The Council took account of his needs assessment, input from relevant professionals and from Mr Y’s family and reached a best interests decision that the supported living placement could meet his needs. There is no fault in the way the Council reached the decision the placement was likely to be suitable for Mr Y.
33. After Mr Y moved to the placement the care provider noted in the support plan that he made noises. It is likely that Mr Y’s behaviour was affected to some degree by the change in environment. In response to my enquiries, the Council said those supporting Mr Y believed the noises to be as a result of him being settled and receiving appropriate support. I cannot say to what extent Mr Y had previously made noises but there is no evidence they were of a sufficient level to be a nuisance.
34. When Mr X raised a complaint about noise the Council discussed the concerns with the care provider who agreed to take Mr Y out of the property more frequently to reduce the episodes of noise nuisance. The Council also liaised with the District Council to try and resolve the concerns. The District Council recognised the sensitivities of the case and gave the care provider six months to abate the nuisance. During that time the care provider obtained planning permission for an extension and purchased a new property.
35. It has taken significant longer than expected for Mr Y to move to the new property. However, given the difficulties caused by the COVID-19 pandemic I do not consider this was due to Council fault. Mr Y has complex needs and the Council primary responsibility was to ensure it met these. The move to a new placement required some transitional working so Mr Y would be familiar with the new staff. There is no fault in the way the Council, and care provider acting on its behalf, has responded to the noise complaints.

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Final decision

36. I have completed my investigation as there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman