Leicester City Council (18 002 140)

Category : Environment and regulation > Antisocial behaviour

Decision : Upheld

Decision date : 01 Apr 2019

The Ombudsman's final decision:

Summary: Miss X complained the Council failed to properly investigate her reports of noise against her next door neighbour, Ms Y. The Council was at fault. It failed to properly investigate Miss X’s reports of noise made outside of its monitoring service hours. Its enforcement policy and lengthy waiting list for a noise recorder meant it could not take further enforcement action against Ms Y. That caused Miss X the frustration of repeatedly reporting the noise to the Council and the uncertainty of not knowing how it was progressing her complaint. The Council agreed to apologise to Miss X and pay her £150 to recognise the time and trouble she had pursuing her complaint. The Council also agreed to review its policy on enforcement and how it investigates noise reports made outside of its monitoring service hours.

The complaint

  1. Miss X complained the Council failed to properly investigate her reports of noise against her next door neighbour, Ms Y. Miss X said the Council’s failure to take action against Ms Y caused her uncertainty, distress, and the frustration of continuously reporting the noise.

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What I have investigated

  1. Miss X had complained to the Council about noise and anti-social behaviour (ASB) by her neighbour Ms Y for more than ten years. She complained to the Ombudsman in July 2018 about its actions regarding this ongoing situation.
  2. The law says complaints should be brought to the Ombudsman within 12 months. This is to give us the best opportunity of arriving at a robust evidence based decision on more recent events. However, we have discretion to consider earlier matters, depending on the circumstances of the case.
  3. I decided to only investigate the events covered by Miss X’s most recent complaint to the Council, made in May 2018. That concerned events from July 2017 onwards and so that was the period my investigation covered.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot investigate complaints about the management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
  3. 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

  1. I considered Miss X’s complaint.
  2. I considered the Council’s response to my enquiries.
  3. I considered the Environmental Protection Act and the Council’s policies regarding investigation of noise nuisance.
  4. Miss X and the Council had the opportunity to comment on my draft decision and I considered the comments before I made my final decision.

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What I found

  1. The Local Government and Social Care Ombudsman cannot look at tenancy management issues. The Housing Ombudsman can consider such matters where the complainant is a tenant or landlord of a council or social housing provider. The law does not allow private home owners to complain to the Housing Ombudsman about tenancy management issues. Neither does the law allow the Local Government Ombudsman to consider such matters. This means I cannot look at what, if any action, the Council or its housing officer took in relation to Miss X’s neighbour’s tenancy. I can only consider what action the Council took in relation how it investigated and responded to complaints of noise nuisance.

Statutory noise nuisance

  1. The Environmental Protection Act 1990 (EPA) places a duty on the council to investigate any complaints of ‘statutory nuisance’. Statutory nuisance is a term commonly applied to the impact of noise from a property. For a noise to amount to a statutory nuisance it must do one of the following:
    • Unreasonably and substantially interfere with the use or enjoyment of a home or other property
    • Injure health or be likely to injure health
  2. There is no set level at which noise becomes a statutory nuisance. The council’s role is to make a judgement about whether a noise is a statutory nuisance considering several factors such as the activity, locality, time of day, frequency and duration of the noise.
  3. The council is required to investigate complaints of noise nuisance. It will gather evidence to find out whether the noise is causing a statutory nuisance. If it finds the noise is a statutory nuisance it must serve an abatement notice. This requires whoever is responsible to stop or restrict the noise. If someone does not comply with an abatement notice they can be prosecuted and fined. Councils do not have to witness noise nuisance in person. They can consider a range of evidence such as noise recordings, noise diaries and witness statements.
  4. The Council’s website says it can take action if it decides there is a noise nuisance. The action it can take includes:
    • Serving informal letters and/or legal notices.
    • Interviews under caution
    • Prosecution.
  5. The Council’s website says domestic noise includes:
    • Loud music and musical instruments
    • Parties
    • Outdoor events
  6. The Council’s noise monitoring and complaints policy sets out how it should deal with reports about noise. When the Council receives reports of noise during the daytime, it must pass details of the report to the duty noise officer.
  7. The Council’s noise monitoring service operates during the following hours:
    • Monday – Tuesday 9am – 4.30pm
    • Wednesday – Friday 9am – 2am
    • Saturday 8pm – 2am
  8. The policy says reports outside of its monitoring service hours, are logged onto its database and passed to the duty officer to investigate.
  9. The policy says the Council will generally deal with reports in the order it receives them, however noise officers will prioritise certain calls according to the significance and level of nuisance. The policy says the Council aims to visit and monitor reports of noise during its service hours from existing contacts within one hour. If that is not possible, the policy says the Council must keep the person reporting the nuisance informed of the noise officer’s likely time of arrival.
  10. The Council’s policy says it will issue an informal warning letter if a noise nuisance is detected for the first time and invite the perpetrator to an informal interview. The policy says if the Council witnesses a second noise nuisance then it will serve a formal abatement notice under the EPA. If the Council witnesses a third noise nuisance, then it will interview the perpetrator about the offence under caution. If the Council witnesses a fourth nuisance it will obtain a warrant to gain entry to the property and seize noise equipment, or it will commence formal prosecution.
  11. The policy says if there is more than six months between recorded nuisances, then the procedure goes back to the preceding stage. The policy says if the Council has already served an abatement notice on the perpetrator, and more than 12 months has elapsed since the notice or interview under caution, then it will serve an abatement notice reminder letter. The policy says it will take further action following the reminder notice if any nuisance is witnessed within the following six months.

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What happened

  1. Miss X is a private home owner. Her next door neighbour, Ms Y, lives in a house owned by the Council. Miss X has been complaining to the Council about noise nuisance from Ms Y for several years. In 2014, the Council served Ms Y with an abatement notice after it witnessed a statutory noise nuisance.
  2. In July 2017, Miss X called the Council on nineteen occasions and reported noise nuisance from her neighbour, Ms Y. Most of her calls to the Council were outside of its service hours. The Council visited Miss X once in July 2017 but said the noise was not loud enough for it to take any action.
  3. Miss X called the Council on further occasions in August 2017 to report noise and in September 2017, the Council installed a noise recording machine at her house for a period of two weeks. The Council listened to the recordings of the two week period and decided the noise was not enough to be considered a statutory nuisance.
  4. Between October 2017 and May 2018, Miss X made twenty further calls to the Council reporting noise coming from Ms Y’s house. The Council installed the noise recording machine in Miss X’s house again for a two week period in May 2018. The Council listened to the recording and decided noise from Ms Y’s house on one occasion was a statutory noise nuisance. The Council wrote to Ms Y in May 2018 and served her an abatement notice reminder letter. The notice warned Ms Y that the abatement notice served on her in 2014 was still in force, and it would take further action if it witnessed any further noise nuisances. The Council noise team also wrote to the Council housing officer as Ms Y’s landlord about what it had observed. The housing officer took actions which I have not investigated for the reason set out in paragraphs six and twelve.
  5. Miss X complained to the Council in May 2018 about the way it had handled her reports of noise. It told Miss X she would have had to wait six months before it would install another noise recording machine. Miss X said most of the noise nuisance occurred during the night when noise officers were unable to attend in person which is why recording equipment was essential. Miss X also complained about historic complaints going back to 2005 which I have not considered for the reasons explained in paragraphs 2-4.
  6. The Council wrote back to Miss X in July 2018. It said the noise team remained involved with her case, and that Miss X had not received less favourable treatment than other customers in the same circumstances. The Council said it offered to buy Miss X’s house from her in 2017 to address the historic issues, which she declined.
  7. Miss X made six further reports of noise to the Council between June 2018 and September 2018. She remained unhappy with the actions of the Council and complained to the Ombudsman.

The Council’s response to my enquiries

My findings

  1. In investigating this complaint, I have only considered the actions of the Council in response to Miss X’s reports of noise from July 2017 onwards. The evidence shows Miss X made a total of 48 calls to the Council reporting a noise nuisance from her neighbour, Ms Y, between July 2017 and September 2017. Miss X made 41 of the calls to the Council outside of its service hours.
  2. The Council said it doesn’t provide a 24 hour service for noise reports and its policy is not to visit complainants who call outside of its service hours. Its policy is to log the call on its system and add complainants to a waiting list to install a noise recorder. At the time of investigation there was a six month waiting list for installation of a recorder.
  3. While the Council may not provide a 24 hour response service, it still has a statutory duty to investigate reports of noise, regardless of the time the noise occurs. It should be prepared to consider evidence from any source, not just from a noise recorder, such as noise diaries and witness statements. The evidence shows the Council appropriately investigated Miss X’s reports of noise within its service hours. However, the Council has not provided evidence to show it properly investigated the reports of noise Miss X made outside of its service hours, other than to log the time of the call and add her to a waiting list for a noise recorder. That was fault.
  4. Following the abatement notice served by the Council on Ms Y in 2014, it witnessed a further four statutory noise nuisances. The Council said it interviewed Ms Y under caution in 2016. When it decided Ms Y had caused statutory noise nuisance in May 2018, it wrote to her with an abatement notice reminder letter. It also sent a copy to her landlord. The Council said following the notice reminder, it added Miss X to the waiting list for a noise recorder. The Council said waiting lists for noise recorders were more than six months.
  5. Following the notice reminder in May 2018, Miss X made six further complaints of noise. The Council did not investigate those calls because Miss X called out of monitoring service hours, and she was already on the waiting list.
  6. The only method the Council used to investigate and identify Miss X’s reports made outside its service hours as statutory nuisance was its noise recorders. The Council’s policy meant it would only take further action following Ms Y’s notice reminder if it witnessed another nuisance within six months. Miss X did not reach the top of the list for a recorder until December 2018. Coupled with the Council’s policy on out of hours reports, this meant the Council would never be able to take further action against Ms Y. The Council could not have witnessed, to its satisfaction, any further nuisance until six months after the previous one due to the long wait for a recorder, and its lack of any other investigative practice for out service hours reports. This is fault.
  7. Statutory nuisance is a term applied to the impact of noise from a property. It doesn’t have to be witnessed in person or with a recorder. The Council can use its own judgement and consider a range of factors to decide whether noise is a statutory nuisance. I have not seen any evidence which showed the Council progressed her out of hours reports without the use of its recorder. Due to the limited number of noise recorders the Council has, it is likely it would never have been in position to use a recorder in time to take further action within its time limits.
  8. Miss X spent over a year reporting noise nuisance to the Council. Save for two, two week periods when it installed recording equipment, there were no records to show it investigated or did anything with her ongoing out of monitoring service hours reports of noise nuisance from Ms Y. It noted the date and time of the call, but did nothing else. The Council failed to actively investigate Miss X’s out of monitoring service hours reports of noise. Other than a noise recorder, it did not consider using any other investigative techniques to progress Miss X’s reports. That was fault. It caused Miss X frustration, and avoidable time and trouble in continuing to report the noise. It left Miss X with the uncertainty of what, if any action the Council considered outside the use of the noise recorder.

Agreed action

  1. The Council agreed should within one month of the final decision to:
    • apologise to Miss X for failing to properly investigate here reports of noise nuisance made outside of monitoring service hours between July 2017 and September 2018.
    • pay Miss X £150 to recognise the time and trouble in pursuing her complaint.
    • review its policy to ensure its noise officers fully document and record details of all reports of noise made outside of its monitoring service hours. This should include details of the noise, and what (if any) subsequent action the Council intends to take.
    • Review Miss X’s noise complaint file and provide the Ombudsman with an update of its status, and what (if any) investigation is ongoing.
  2. The Council agreed within three months of the final decision to:
    • review its policy on how it investigates reports of noise nuisance outside of its monitoring service hours. This should include how and what other evidence the Council should use in the absence of recording equipment. It should ensure staff keep detailed records of all calls and consider diary sheets to aid its investigative practice and enforcement cases.
    • review its policy on how it enforces statutory noise nuisance, and how it progresses enforcement of breaches of abatement notices in the absence of noise recorders.

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Final decision

  1. I have completed my investigation. I found fault leading to injustice, and the Council agreed to my recommendations.

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Investigator's decision on behalf of the Ombudsman

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