London Borough of Croydon (18 013 019)

Category : Environment and regulation > Antisocial behaviour

Decision : Upheld

Decision date : 31 May 2019

The Ombudsman's final decision:

Summary: Mr C says the Council failed to properly investigate or take action on his complaint about noise nuisance and antisocial behaviour and failed to follow its complaints procedure. The Council delayed beginning an investigation, failed to keep Mr C up-to-date and was unclear in its communications with him. That led him to having to go to time and trouble to pursue his complaint and raised his expectations. There is no fault in the Council’s decision not to take further action though. An apology to Mr C and small payment is satisfactory remedy for the injustice caused.

The complaint

  1. The complainant, whom I shall refer to as Mr C, complained about how the Council dealt with his complaint about noise nuisance and antisocial behaviour. Mr C complained the Council:
    • failed to properly investigate his concerns;
    • failed to take action against his neighbour; and
    • failed to deal with his complaint in accordance with the Council’s complaints procedure.

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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. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mr C disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1) and 26A(1), as amended and section 34(3)).
  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)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and Mr C's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • considered Mr C’s comments on my draft decision; and
    • gave the Council an opportunity to comment on my draft decision.

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What I found

  1. On 25 April 2018 Mr C put in a complaint about noise nuisance from his neighbour’s windchimes. Mr C said his neighbour had made the situation worse by replacing an existing wind chime with one which created more noise while there was another wind chime in place. Mr C provided a video. When Mr C did not receive a formal response he chased the Council on 12 May. Mr C spoke to an officer on 16 May. The officer Mr C spoke to said because the Council had investigated in 2016 and not found any nuisance it could not do anything. Mr C asked the Council to watch the video he had provided.
  2. Mr C contacted the Council again on 24 May. Mr C asked the Council how officers could take a view without viewing the video he had provided.
  3. Mr C put in a complaint on 5 June. The Council did not treat that as a complaint and instead asked Mr C for his video evidence in a different format. The Council told Mr C unless there had been a significant change to the noise there was no action for the Council to take. The Council repeated that information when Mr C offered an opportunity for officers to visit and view the video evidence.
  4. On 3 July 2018 Council officers visited Mr C. Those officers viewed a video. Officers say they did not identify noise nuisance and noted the noise from the wind was louder than the noise from the windchimes. Officers told Mr C they would try to engage with his neighbour but could not take formal action. Officers then visited the neighbour who was not in. Officers left a card asking for contact.
  5. On 13 July the Council told Mr C his neighbour had not responded. The Council said the complaint was difficult to witness and therefore the Council could not take formal action. The Council told Mr C about his option of taking his own action under section 82 of the Environmental Protection Act 1990 if he thought a statutory nuisance existed.
  6. Mr C complained to the Council on 5 August. Mr C said the Council had still not considered the video evidence he had sent in and therefore had not considered the noise the windchimes made.
  7. The Council acknowledged receipt of Mr C’s complaint 9 August. The Council responded to the complaint on 4 September and apologised for the lack of contact. The Council accepted it had not viewed Mr C’s video footage and therefore did not have an accurate picture of the nuisance.
  8. A Council officer visited and viewed the video footage on 21 September. The officer accepted the noise had a negative impact for Mr C and agreed to make contact with his neighbour to see if a solution could be found.
  9. Mr C asked the Council for an update on 7 October. The Council explained it had not contacted Mr C’s neighbour due to officer illness.
  10. The Council wrote to Mr C on 16 October in response to his concerns about the comprehensiveness of the Council’s complaint response. The Council apologised for failures to respond to Mr C’s correspondence and for failing to keep him up-to-date with what was happening. The Council apologised for not treating Mr C’s email of 5 June as a complaint. The Council explained the threshold for determining antisocial behaviour is high and the excessive use of windchimes would not meet that threshold to enable the Council to take action. The Council advised him it would treat his concerns as a nuisance and annoyance issue and take action to resolve it.
  11. On 19 October the Council told Mr C it had booked an appointment with his neighbour for 1 November.
  12. Mr C chased the Council on 27 November. The Council told Mr C it had not been able to meet with his neighbour. The Council suggested mediation but said it would make a further attempt to meet with the neighbour first. The Council told Mr C if the neighbour refused to remove the windchimes it would have to consider taking a more formal approach.
  13. Mr C asked the Council for an update on 5 December. The Council apologised for the delay on 11 December and said it had not been able to contact Mr C’s neighbour. The Council said it would contact the mediation service to make an independent approach. Mr C asked for clarification on that because he had understood the Council would consider formal action if his neighbour did not respond. Mr C chased the Council for a response on 24 January 2019. On 25 January the Council told Mr C he would need to contact the mediation service directly.

Analysis

  1. Mr C says the Council failed to properly investigate or take action when he complained about noise nuisance and antisocial behaviour from his neighbour’s windchimes. The Council accepts when Mr C first complained of noise from his neighbour’s windchimes in 2018 its officer failed to visit or view Mr C’s video evidence before telling him the Council could not take any action. I appreciate the Council had previously investigated similar concerns in 2016 and decided there was no actionable nuisance. However, when Mr C again reported problems in 2018 I would have expected the Council to at least view Mr C’s evidence. The Council failed to do that and did not visit before telling Mr C it could not take any action. That is fault. The Council also failed to keep Mr C up-to-date with what was happening with its consideration of his concerns throughout the period which led to him having to go to time and trouble to pursue his complaint repeatedly. That again is fault.
  2. I am also concerned about the Council’s communications with Mr C once it visited him and viewed his video evidence. It is clear from the Council’s internal communications officers did not believe the windchimes constituted an actionable nuisance which the Council could pursue. I understand this was the verbal advice officers gave Mr C on the site visit. However, the Council’s communications after that visit were confused. I consider those communications misled Mr C into believing the Council would take action. That is because in the Council’s stage two complaint response in October 2018 it told Mr C it would deal with the case as a nuisance and annoyance case and would take action on his behalf to address and resolve the issues. That raised Mr C’s expectations about what the Council would do. Further contact in November 2018 also referred to officers making contact with Mr C’s neighbour and then considering taking formal action if that was not successful. That again raised Mr C’s expectations. That is fault as it is clear the Council’s view is the level of noise and annoyance from the windchimes does not constitute a statutory nuisance and is therefore not something the Council could pursue other than by seeking an informal resolution with Mr C’s neighbour, which had not been successful.
  3. I am also concerned about the Council’s communications with Mr C about the mediation service. When the Council initially suggested the mediation service it said the Council would make the referral. However, in January 2019 the Council told Mr C he would have to make the referral himself. That again misled Mr C and added further delay.
  4. Mr C says the Council failed to deal with his complaint in accordance with its complaints procedure. The Council accepts it should have treated Mr C’s complaint of 5 June 2018 as a complaint and failed to do so. That is fault.
  5. The Council has now decided the noise and antisocial behaviour created by Mr C’s neighbour’s windchimes is not at such a level where the Council can take action. As I have advised, the Council delayed communicating that to Mr C and misled him during the period in question. However, as the Council has reached a decision after visiting Mr C and viewing the video evidence there are no grounds on which I could criticise it. As I said in paragraph 2, it is not the Ombudsman’s role to comment on the merits of a decision that has been reached without fault. That is not to say Mr C is not experiencing annoyance from his neighbour’s windchimes: clearly he is. However, that is not the same as saying there is an actionable nuisance which the Council can take formal action against. There is, however, fault in raising Mr C’s expectations which has led to extended correspondence. As remedy for that the Council has agreed to apologise to Mr C and pay him £250 for his time and trouble and raised expectations. The Council has also agreed to carry out a training session with officers dealing with antisocial behaviour and noise complaints.

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Agreed action

  1. Within one month of my decision the Council should:
    • apologise to Mr C;
    • pay Mr C £250; and
    • carry out a training session for antisocial behaviour and noise nuisance officers to cover communicating with complainants during an investigation and when a decision is reached not to pursue matters further.

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Final decision

  1. I have completed my investigation and found fault by the Council in part of the complaint which caused Mr C an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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