Summary: The complainants say the Council has not responded properly to their complaints about neighbour nuisance. The Ombudsman finds the Council’s failure to review its approach was fault. This caused an injustice. We have made a recommendation to remedy this and asked the Council to review its processes.

The complaint

1. The complainants say the Council failed to respond effectively to their complaints about noise nuisance and anti-social behaviour from their neighbours.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

5. I spoke to the complainant and made enquiries of the Council. I have researched the relevant law and guidance. I gave both the complainant and the Council the opportunity to comment on this draft decision. As a result of their comments, I have made some amendments to the final decision.

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What I found

What should happen - Relevant law and guidance

6. The Environmental Protection Act 1990 says noise which is emitted from premises which is prejudicial to health or a nuisance is a ‘statutory nuisance’. Local authorities are under a duty to take such steps as are reasonably practicable to investigate complaints about statutory nuisances.
7. Home Office guidance on noise nuisance stresses that not all noise is a statutory nuisance, even if it is causing concern to the person hearing it. Its guidance points out that it is not unreasonable for babies to cry, telephones to ring, for people to walk around in their flat or use their washing machines. Some noise may be a consequence of poor building design or lack of sound insulation, rather than intentional anti-social behaviour by the occupant. Councils are supposed to manage complainants’ expectations about what constitutes unreasonable anti-social behaviour, as opposed to everyday lifestyle noise. They should, however, take account of a complainant’s circumstances, including vulnerability.
8. Environmental health practitioners should consider a number of factors, based on case law, to determine whether a noise should be considered a statutory nuisance. This includes looking at the level of noise, the origin of the noise, its frequency and duration, the time of day the noise occurs and any particular sensitivity of the complainant. For example, someone with hyper-sensitive hearing. But, as the courts currently understand it, noise is unlikely to be prejudicial to health. For noise to be a nuisance, it must be an unacceptable interference with the personal comfort or amenity of neighbours.

The Community Trigger

9. The Anti-social behaviour, Crime and Policing Act 2014 aims to ensure that there is a greater focus on the impact of anti-social behaviour on victims and their needs. It emphasises the importance of, “…ensuring that powers are used appropriately to provide a proportionate response to the specific behaviour that is causing harm or nuisance without impacting adversely on behaviour that is neither unlawful or anti-social.”
10. It says the Community Trigger is an important “safety net” in ensuring that victims voices are heard. It is important that victims can easily access information about how to apply for a formal review. Victims of persistent anti-social behaviour can ask for such a review where the locally defined threshold is met, in order to determine if further action can be taken. The relevant bodies in the local area must agree on and publish their Case review/community trigger procedures.
11. When an ASB Case Review is requested, the relevant bodies must decide whether the threshold has been met and communicate this to the victim. The ASB Case Review procedure should clearly state the timescales in which the review will be undertaken. The threshold must be no higher than three qualifying complaints of anti-social behaviour in a six-month period. Once the threshold is met, the relevant bodies must undertake the review.
12. Relevant bodies should agree an appropriate ASB Case Review/community trigger threshold, having regard to:

• the nature of the anti-social behaviour experienced by victims in their area, and
• the working practices of the agencies involve.

13. If the threshold is not met, even if formal procedures are not invoked, relevant bodies will have had an opportunity to review the case and determine if there is more to be done.
14. Local authorities should use their risk assessment procedures as part of the decision on whether the threshold is met.
15. The Anti-social behaviour, Crime and Policing Act 2014 guidance, (“the Guidance”) sets out that local providers of social housing who are co-opted into the local arrangements can be relevant bodies.
16. The Guidance says that cases where there are repeated applications by people which, on investigation, relate to non anti-social behaviour matters may be indicative of an underlying vulnerability or unmet need.
17. Consequently, even where the threshold is not met, local agencies may wish to consider the possibility of hidden needs or risks which may require a response.
18. Behaviour which falls below the level of harassment, alarm or distress, may not meet the threshold, but when assessed on the grounds of potential harm to the victim, the impact of the behaviour may be such that the threshold is considered to be met.
19. Where the victim is considered to be particularly vulnerable, the relevant bodies should consider whether additional practical and emotional support can be offered to the victim.
20. The Council says its Community Trigger can be triggered by a victim using an on-line reporting form. It can also be triggered by any person on behalf of the victim (family member or friend), carer, councillor, MP or other professional person. It says it cannot be triggered by the Local Authority, Police or other organisation.
21. Its policy states that, ‘when deciding whether the threshold is met agencies should consider the harm or potential harm caused to the victim, rather than rigidly deciding whether each incident reached the level of harassment, alarm or distress.”
22. It says the process should be made as accessible as possible to all victims.
23. To qualify for a review, an application must be received and the victim must have made at least three qualifying complaints.
24. There is a link on its website for people to access if they wish to seek a review of their anti-social behaviour case.

The Council’s Community Safety Hub (hub)

25. This is a multi-agency partnership whose purpose is to allow partners to collaborate effectively and provide a collective approach to tackle key issues identified in the Police, Fire & Crime Commissioners Police and Crime Plan, the Council’s Community Safety Partnership Action Plan and from emerging crime trends and patterns. Officers can refer anti-social behaviour matters to the hub to be discussed and to establish whether any action can be taken.
26. The Council says it serves a similar purpose to the Community Trigger but has a different process.

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What happened

Background

27. The complainant first contacted the Council about issues with her neighbours in September 2016. However, I will only be looking at the way the Council handled the investigation from around December 2017, which is 12 months before the point when the complainant first raised her complaint with the Ombudsman.
28. The neighbours Mrs X complains about are tenants of a housing association, (“the Association”). The Council explains that it does not oversee the Association and has no powers to hold it to account for their tenancy management. It says it has worked with the Association to address Mrs X’s complaints about neighbour nuisance.
29. By way of background, before the point my investigation begins, the Council had installed noise recording equipment three times in response to Mrs X’s complaints. It sent warning letters to her neighbours in response to the allegations of noise and anti-social behaviour. It sent Mrs X diary sheets to complete. Environmental officers had attended at her property on several occasions but had not witnessed enough disturbances to justify further action. The Council explained that it considered most of the noises Mrs X reported were consistent with ‘normal living’. It stressed that this did not mean Mrs X and her family were not experiencing a problem, but that the Council did not consider this amounted to a statutory nuisance.
30. The Council advised her that she could take action herself under Section 82 of the Environmental Protection Act 1990. It provided her with information showing her how to do that.
31. Mrs X says she was initially told to press the button every time she or her family heard noises. However, she says that on the second occasion the equipment was installed, she was told not to press the button too many times as it took officers hours to listen to the recordings. . She says this one of the reasons there was not enough evidence of noise to justify action from the Council.
32. The Council says service-users are advised not to record all or every event. It says this may overload the system. However, it says service-users are asked to record a five to ten minute representative recording of each incident of nuisance noise. It says diary sheets are used to support the information recorded on the equipment.
33. The records show that the officer who arranged the installation of the noise equipment asked that it should be installed so that it would record well in advance of the button being pressed. He said that, “…reports indicate that a lot of the nuisance is slamming of doors, running up and down stairs etc, the type of noise which is very short lived and may well have ceased prior to the equipment being turned on, but is allegedly repeated every few minutes.”
34. It says it plans to prepare a guidance note to aid the use of the equipment in the future.
35. In September 2017 the Council came close to issuing an abatement notice against Mrs X’s neighbours. An officer who had been visiting the property, Officer P, recommended this action was taken. But it was felt that the evidence was not “…substantive enough” at that stage. Mrs X’s neighbours’ behaviour was described as, “…inconsiderate and can be improved, but not yet nuisance.”
36. After this point, noise monitoring equipment was installed again.

From December 2017

37. On 4 December 2017 the Council wrote to Mrs X’s neighbours, reminding them that they were still subject to a Community Protection Warning that it had served in April 2017.
38. On 7 December 2017 the Council wrote to Mrs X. It detailed the consideration it had given to her case since June 2017 but said that while it recognised she had been experiencing a disturbance, the Council still did not consider, despite further investigation, that that disturbance represented a statutory nuisance. It concluded that without a significant change in circumstances, the case should be closed. She was advised she could take action herself and/or she could complain to the Council’s complaints department if she felt the Council had not handled her complaint properly.
39. On 12 December 2017 the complainant emailed the Council to report the loud revving of a bike. The Council looked into whether the noise could be investigated as a statutory nuisance. It determined that the noise had stopped after 17 minutes.
40. On 18 December 2017 Mrs X reported loud music again. She said she called the police and contacted the Council. However, she said that Officer P refused to visit, reopen the case or open a new case. The records show Mrs X was told the case had been closed.
41. Officer P sent an email to the Association, questioning whether it was doing enough to help Mrs X. He said he felt that the issues, “…may be partly be some oversensitivity on the part of Mr and Mrs [X], but my previous investigation also demonstrated that their complaint is not without foundation and that they are disturbed by noise at times.”
42. The records show that the Association also felt it was doing all it could do address Mrs X’s complaints and welcomed a multi-agency approach.
43. On 18 December 2017 Mrs X called the Council to ask if someone could come and witness the noise at her property. She said she was aware the case was closed but wondered if a visit would be possible anyway. The Council refused, stressing that it had already closed the case and that, “…a line has to be drawn in terms of when investigation stops.”
44. On 8 February 2018 Mrs X emailed Officer P. She asked for the case to be reopened. Records of internal emails show the Council considered re-opening the case. However, it decided against re-opening and told Mrs X it had no legal duty to do so.
45. On the same date the headteacher of one of the schools attended by Mrs X’s children, wrote to the Council. She said Mrs X had told her about the noise from her neighbours’ property. Mrs X said the noise at night was keeping her children awake and the school confirmed that the child attending her school, often looked tired.
46. On 21 May 2018 the complainant wrote to the Council’s Chief Executive, complaining about the way her case had been handled.
47. The Council responded that her diary sheets had shown reports of, “…living noises, mostly in normal hours.” It said these noises were, “…unneighbourly but not necessarily unreasonable.”
48. Mrs X says the noise continued. She said on 24 June 2018, her neighbour’s son and girlfriend played loud music in their car until 9:45pm.
49. She complained again to the Council. She queried the qualifications of one of the environmental officers that had visited, Officer D. She said she understood that he was actually a dog warden, not an environmental officer.
50. The Council says that Officer D’s previous job title did include the title Dog Warden. However, it says it has two teams which can potentially deal with noise complaints. One, is the Council’s Street Scene Team, which includes Officer D and deals with reports of Anti-Social behaviour (which can include noise), under the Anti-Social Behaviour, Crime and Policing Act 2014. The other team is its Environmental Protection team which deals with complaints under the Environmental Protection Act 1990. It says Mrs X had contact with both teams.
51. On 8 July 2018 a complaint was received about shouting, swearing and raised voices. The Council recorded that an officer visited but did not witness any issues. At 4.31am out of hours officers recorded that Mrs X had called to complain about the revving of engines again. There is no record of the response to that call.
52. Mrs X called Officer D on 17 July 2018 and he emailed her on 20 July 2018. They discussed her complaints.
53. Officer D wrote an email to other officers in the department asking if the departments could get together and go through the complainant’s complaints since September 2016.
54. He said Mrs X had been complaining about multiple issues and agencies not talking to one another. She said she had tried to trigger the Community Trigger but could not find out how to do it. He said:

“I have not read your stage one response, but I really feel that the Police, [the Association], your Dept, this one and [another officer’s] team should probably meet to discuss all the matters she is complaining about as I feel this has reached the trigger, although your response may have already addressed this.”

55. Mrs X emailed Officer D to confirm the contents of their conversation. She said she believed that if all departments got together and discussed her complaint, a resolution could be reached.
56. The Council says it treated Mrs X’s correspondence with Officer D as a stage 2 complaint.
57. On 6 August 2018 the Council responded to Mrs X’s stage 2 complaint. The Council said officers had responded. She was told there would need to be, “…a significant difference in the nature, frequency and duration of the noise episodes in order for a statutory nuisance case to be re-opened.”
58. Mrs X was asked to contact the street scene enforcement team. She was also informed that she could take her own action against her neighbours under section 82 of the Environmental Act 1990.
59. Mrs X continued to raise complaints. But the Council did not consider enforcement action was appropriate.
60. On 31 August 2018 Mrs X’s doctor wrote to the Association. She said Mrs X’s children were receiving help from the mental health team because of the difficult situation, allegedly caused by Mrs X’s neighbours. She said Mrs X’s husband had been signed off work because of depression. She asked the Association to help alleviate the families stress levels and take the matter seriously.
61. Mrs X continued to make further complaints about banging on her neighbours’ walls. Officer D sent an email to other officers asking if anything could be done.
62. On 15 October 2018 another doctor wrote a letter setting out the same details provided by the first doctor on 31 August 2018. The letter does not state where it was posted so I am unsure if it was sent to the Council or the Association. In summary the letter said that the pressure was, “…having a detrimental effect on all the family’s health.” She said she would be grateful for any help the Council could provide.
63. On 22 October 2018 a representative from the Essex Child & Family Wellbeing Service wrote to the Council on Mrs X’s behalf. She referred to the allegations of continued anti-social noise from Mrs X’s neighbours and said the police had been called. She said Mrs X’s children were suffering anxiety because of the noise.
64. On 29 October 2018 Mrs X wrote to Officer D again, saying her daughter had been kept up again all night, terrified of the banging on the walls adjacent to her bedroom. She said she had contacted the police.
65. Mrs X continued to complaint and on 29 October 2018 Officer D sent another email to officers saying, “I don’t know if anyone is, or should be doing something with these reports?”
66. The next day Mrs X wrote to Officer D again. She said, “It would be nice for a response from the parties involved just to reassure us that it is being dealt with, as at present, from our point of view, we see nothing happening.”
67. On 30 October 2018 Officer D wrote again to another Council officer, Officer S, who is member of a hub that meets to review cases. Officer D said: “My concern is that nobody within [the Council] attempts to deal with and we hit a trigger and the consequences thereof.” He said he had thought the matter had been brought to the attention of the hub and that all other agencies could get involved.
68. Officer S responded saying that the case had not been referred to the hub as yet. She said her team did not have a specific officer to deal with anti-social behaviour. She sent Officer D a link to the Council’s Anti Social Behaviour protocol and indicated that there was some confusion around that protocol where it states that cases are discussed at the hub if a multi-agency response is required.
69. On 23 November 2018, the Council’s Children and Families Hub wrote to Mrs X. It said that from the information Mrs X had provided, it did not consider that any ‘direct support’ from Family Solutions or Social Care was needed. However, it suggested that she could obtain some help from health visitors a nursery or children centre worker. She said these Early Help services could support her family and it provided a link to access more information.
70. Mrs X said she did not try to trigger the Community Trigger because she had already come to the Ombudsman with her complaint. She came to the Ombudsman in November 2018.
71. On 7 January 2019 a representative from the Adult Mental Health Wellbeing Team also wrote to the Council. She said she was concerned about the impact the ongoing situation was causing Mrs X. She said that Mrs X had visited hospital recently because she had suffered a panic attack brought on by the difficulties. She asked for some resolution from the Council.
72. The Council did not consider Mrs X’s complaint at its Community Safety Hub (CSH). It says it was tabled for discussion at two meetings but unless the officer who places an item on the agenda, attends the meeting, it would not be addressed.
73. The first meeting Mrs X’s issue was due to be discussed at, was cancelled. Officer D asked for her complaint to be discussed at a second meeting in January 2019. However, he did not attend the meeting, so the matter was not discussed.
74. The Council says that on 7 May 2019 Mrs X contacted the Council’s Community Services Team. She said she had been trying to make an application for the Community Trigger but the Council’s website kept crashing. The Council says an officer investigated. He completed the online form and found that the website was functioning correctly. The Council says he called Mrs X and asked her to tray submitting the form again but Mr X called back to say that the couple were still having difficulties with submission.
75. The Council says the officer sent a hard copy of the form to Mr and Mrs X, which it says was acknowledged. However, at the time of writing its response to my draft decision, the Council says it had still not received a completed form from Mr and Mrs X.
76. It says that as soon as the Council receive a request to trigger a review of Mrs X’s case, it will respond in accordance with its policy.

Findings

77. There is an extensive background to this case, which shows that the Council thoroughly investigated Mrs X’s reports. The records show the Council was sympathetic to her situation, with one officer considering that an abatement notice was appropriate. However, it was entitled to decide that ultimately, it did not have enough evidence to justify doing so. After that decision was made, it installed noise monitoring equipment again but officers still did not consider the disturbances Mrs X complained of amounted to a statutory nuisance. It was entitled to reach that view. There is no fault here.
78. Mrs X says she was unhappy to be told that the Council would not reopen the cases after it was closed in December 2017. I do not find the Council at fault for this decision. It was taken by a professional in a context where there was a background of complaints made by Mrs X, against her neighbour, where the Council did not consider the alleged noise amounted to a statutory nuisance. The Council has to justify its actions and take proportionate action where appropriate. It is reasonable that it would not reopen her complaint unless it considered that she had new evidence of anti-social behaviour.
79. I do not find the Council at fault for the way in which it handled the installation of noise-recording equipment. Although it might have been clearer about its use, the evidence is that the equipment was set up to catch noise in a way that would be useful. As the Council provided diary sheets as well to supplement the recordings, the Council was given a full picture of the noise Mrs X alleged was being produced by her neighbours.
80. But I find the Council at fault for failing to demonstrate it effectively considered whether the anti-social behaviour she reported, warranted reviewing her case using the Community Safety Hub. The records of emails between officers about whether a multi-agency approach was required or not are confused. At one point, Officer D said, “I think everyone is struggling with how to deal with this.”
81. This was a situation where the complainant felt she had been failed by a number of agencies because of a lack of a coordinated response to her complaints. It was therefore appropriate that, as Officer D requested, her case was reviewed.. However, there was no effective system in place to trigger that review and act on it in a timely and effective way. This is fault.
82. Mrs X had made it clear that she felt let down by agencies and a review was appropriate. Since issuing my draft decision, the Council has acknowledged it failed in this regard.
83. Mrs X clearly demonstrated she felt vulnerable and this was supported by letters from other professionals who requested the Council intervene.
84. The hub review should have gone ahead with or without the person who suggested the case be put forward for review. It can’t be the case that if an officer is not able to attend a meeting, a pressing case is not considered. This is fault. The case could have been reviewed on the records. Officer D suggested it should be addressed in July 2018. There is no particular timeframe for reviews to be heard but records reveal that Officer D was unable to tell if Mrs X’s continued complaints were even being addressed, let alone put forward to consider if a review might be appropriate.
85. Councils should use their risk assessment procedures to assess if a Community Trigger process is appropriate. The Council has confirmed it did not undertake any risk assessment of Mrs X’s situation. This is fault, especially given the fact that she presented as a vulnerable individual and the Council was aware that she said her family were being deeply affected by repeated disturbances from their neighbours.
86. It is unfortunate because the records show the Council was trying to help Mrs X. They show the Council engaged with third parties. But the reason referral to the hub was so important is that a multi-agency approach can act as a ‘safety net’ if cases go gone astray. In this case, I can see no evidence of that safety net was properly in place. This is fault and I have made a recommendation to acknowledge this fault.
87. I make no judgement on whether, if Mrs X’s case had been reviewed, either by the hub or if Mrs X had made an application for a community trigger, it would have triggered further action. That would be too speculative. But the Council should have processes in place to address these types of complex cases. I have made a recommendation to address it.
88. The failure of the Council to show that it was taking a co-ordinated multi-agency approach to her ongoing complaints caused Mrs X an injustice. It is clear she felt she had been abandoned by the Council and other agencies. The evidence shows she was clearly vulnerable and there is further evidence that her children were also being affected by the situation. A coordinated response may have given her the support she needed. Even if agencies took the view there was little they could do, a coordinated approach would have gone some way to reassuring Mrs X and her family that everything that could be done was being done.

Recommended/ agreed action

89. Within one month of my final decision, the Council should:

• Apologise to Mrs X for failing to follow through with a multi-agency review of Mrs X’s case with the Community Safety Hub.
• Review Mrs X’s case through the Community Safety Hub using the internal referral process and take any necessary action following on from the review.
• Pay Mrs X the sum of £200 to acknowledge that the Council failed to follow up the referral to the Community Safety Hub.

90. Within two months of my final decision, the Council should:

• Review its processes for Community Safety Hub referrals to ensure that if a case meets the threshold for referral, it is referred as such and the Council takes action as soon as possible, keeping the complainant/victim informed of its steps.

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Final decision

91. While I have not found that the Council is at fault in terms of the investigation it implemented into Mrs X’s anti-social complaints, it is at fault for failing to properly deal with Mrs X’s case using the Community Safety Hub.
92. I have now concluded my investigation.

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Investigator's decision on behalf of the Ombudsman