Summary: Mrs X complained about the Council’s failure to prevent a noise nuisance from the neighbouring property being used by the Council as a children’s home. Mrs X also complained the Council did not consult with her before opening the children’s home. The Ombudsman has found the Council to be at fault because it did not monitor the noise as it would normally do or consult properly with Mrs X. To remedy the injustice caused, the Council has agreed to apologise to Mrs X, make a payment to her and refer her noise complaint to its Public Protection Department for further investigation and advice.

The complaint

1. Mrs X complains the Council failed to take appropriate action to address the noise nuisance from the neighbouring property that is being used by the Council as a children’s home.
2. She says the noise is unacceptable and has significantly affected her quality of life. She would like the children’s home to be closed down, particularly as she was not told about it beforehand. This forms part of her complaint to the Ombudsman.

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The Ombudsman’s role and powers

3. 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)
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. As part of my investigation I have:

• considered the complaint and documents provided by Mrs X;
• made enquiries of the Council and considered its response;
• considered the relevant law; and
• sent my draft version of this decision to both parties and invited comments on it. Comments received from both parties have been taken into consideration.

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What I found

Background

6. The law says councils must investigate complaints about noise that could be a statutory nuisance. For something to count as a statutory nuisance it must:
• Unreasonably and substantially interfere with the use of enjoyment of a home or other premises and/or,
• Injure health or be likely to injury health.
7. Councils may gather evidence about nuisances by asking people to fill out diary sheets and giving them recording equipment. Specialist equipment is designed to give councils robust evidence, taking account of recording levels.
8. If an officer, having considered the evidence, decides a statutory nuisance is happening, or will happen in future, councils must serve an abatement notice. This requires the person responsible to stop or restrict the nuisance.
9. Councils can decide to take informal action if the nuisance complained about is causing a nuisance but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
10. A person affected by a noise nuisance can make an application directly to the magistrate’s court for an abatement order.

What happened

11. Mrs X has lived in her semi-detached property for many years. In early 2018, the Council decided it wanted to open a small children’s home (“the Home”) next door to Mrs X. It consulted with the local community about this proposal. It says it wrote to Mrs X, and others, inviting them to a meeting about this. Mrs X says she did not receive a letter and so was unaware of the proposal.
12. The consultation meeting took place in February 2018. Nobody attended. Invitees were sent another letter about it.
13. The Council went ahead with its proposal and the Home opened in August 2018. It was occupied by one young person who had behavioural issues. These caused some noise disturbance, mainly in the form of loud shouting, swearing and door banging. Mrs X says it was unpleasant and sometimes distressing to listen to. She was unable to take her young grandchildren in the garden because it would have been too upsetting for them to hear.
14. In March 2019, Mrs X expressed her concerns verbally to a member of staff at the Home. Three days later the manager of the Home (“the Manager”) went to discuss the problem with her. The Manager said she would move the young person’s bedroom to a different room and increase the number of staff at night to help manage their outbursts.
15. In June 2019, Mrs X again expressed her concerns verbally to Home staff. Once again the Manager went to see Mrs X to reassure her they were taking the matter seriously. This time the Manager arranged for work to be carried on the doors to stop them banging so loudly.
16. According to Mrs X the noise persisted so she lodged a formal complaint with the Council and then to the Ombudsman. She said the noise was unbearable, she continued to be unable to enjoy her home as she had previously and the Home should be closed, particularly as she had not been consulted before it opened.

The Council’s response

17. In response to Mrs X’s complaint and Ombudsman enquiries, the Council has made the following points:

• Mrs X was consulted before the Home opened and she did not object.
• The Home was sound proofed prior to occupation and doors subsequently adjusted to reduce banging.
• In response to her formal complaint, the Council acknowledged there had been some excessive noise and so her complaint was partially upheld and an apology given.
• The Manager responded appropriately to each of Mrs X’s three verbal complaints.
• The Council offered to meet with Mrs X once a week to discuss the noise situation.
• The Home had implemented a number of strategies to manage the child’s behaviour.
• Mrs X was provided with telephone numbers to contact in the event of excessive noise.
• The Council’s Public Protection Team (that normally deals with complaints about noise nuisance) had not been involved because Mrs X had not registered a complaint with that team. In any event the Council cannot take enforcement action against itself.
• Mrs X could take her case to the magistrate’s court.

Analysis

18. The Council has conflicting interests in this case. Both to the child in its care and also to the neighbourhood in which the Home is located. This investigation focuses on possible fault by the Council in respect of how it responded specifically to Mrs X’s noise complaint and her dissatisfaction about the Home being located next door without her being consulted. I will deal with these in turn below.

Consultation

19. Mrs X says she is unhappy with the house next door being used as a children’s home and wants it closed. She says she was not told about it before it opened.
20. The Council said it consulted with residents but received no objections. I asked the Council to provide evidence that Mrs X was consulted. It said a letter inviting Mrs X to a meeting was sent but has been unable to show me a copy because it was overtyped by the subsequent letter.
21. Instead the Council has provided the Ombudsman with a copy of the pro-forma letter it says would have been sent to Mrs X. This letter refers to a “potential support project to support the young people of [the Council area]”.
22. No one attended this meeting. This, together with the failure to produce the letter, casts doubt on whether a letter was sent. But the Council has shown me a follow up letter sent to Mrs X after the meeting giving her the opportunity to comment if she wanted to. It said, “I am sorry you were unable to make Friday….to discuss a potential project to support young people in [the Council area]”. It invited Mrs X to contact the writer or two counsellors.
23. This letter is vague and unhelpful. As was the original pro-forma letter. It did not tell Mrs X that the “potential project” was in the house next door and could affect her personally. Mrs X should have been told this so she could make an informed decision about what to do in reply.
24. Where councils decide to consult on proposals such as this, the Ombudsman expects it should be done properly. This means consultees should be provided with enough information to understand what the proposal is about so they can make an informed decision about how to respond.
25. With no evidence to prove Mrs X was sent the first letter, together with the second letter giving no helpful information to Mrs X, I am satisfied the Council did not properly consult with Mrs X before going ahead with its proposal. This is fault.
26. I cannot say what difference her objection would have made to the outcome. It is entirely possible the Home would have opened in any event, even if Mrs X had expressed her opinion.
27. Mrs X has said she wants the Home to close down. This is not an outcome the Ombudsman could achieve in this case in any event.
28. But she was denied an opportunity to have her say. This was particularly important because of the proximity of the Home to Mrs X. This uncertainty about whether her opinion could have made a difference is the injustice here.

Noise

29. In the case of a complaint about noise nuisance, the Ombudsman would usually expect it to be dealt with by the department dealing with environmental health matters (in this Council, it is called the “Public Protection Team”).
30. Instead, the Council investigated Mrs X’s reports of nuisance by visits by the Manager, making improvements to the doors and taking practical measures to improve the young person’s behaviour.
31. I have therefore seen a number of positive initiatives in this case. The Council has responded to each of the recorded complaints quickly and sensitively at a local level. It offered to meet regularly with Mrs X. The case notes I have read demonstrate a genuine concern about Mrs X’s situation and a desire to resolve it.
32. Despite this positive work, the problem has persisted.
33. If this was a usual case involving neighbour noise nuisance, the Council’s Public Protection Team would have investigated. But in this case the neighbour was, in effect, the Council itself. I agree with the Council that it could not take enforcement action against itself. The law has helpfully provided for this anomaly by allowing individuals to seek a noise abatement order directly from the magistrate’s court. But this could be an expensive process for Mrs X and the Ombudsman would only expect Mrs X to take the Council to court as a last resort.
34. In response to the Ombudsman’s enquiry about the lack of involvement from its specialist department, the Council said this is because Mrs X had not complained directly to its Public Protection Team. Also, because the Council cannot take enforcement action against itself, it would be limited to providing advice to Mrs X.
35. Because of this, Mrs X has been treated differently to other persons affected by neighbour noise nuisance.
36. If she had been treated the same, the Council says she would have been provided with noise monitoring sheets, carried out observational visits and if considered appropriate installed noise monitoring equipment.
37. In my view this should have happened in any event and would have provided some form of semi – independent scrutiny of the problem. The Council could have made the referral itself when she made her formal complaint. It would also have allowed Mrs X to make her own assessment about whether the noise constituted a statutory nuisance and whether she should start her own court action against the Council.
38. While I acknowledge the Council, by trying to manage the situation in the way it did was done with good intent, it nevertheless meant Mrs X was treated differently and was denied the opportunity to have her complaint about noise dealt with like any other. She was effectively disadvantaged because the Council was the cause of the nuisance. This is fault. The Ombudsman has recommended a suitable remedy below.

Agreed action

39. To remedy the injustice caused by the faults identified in this decision statement, the Council has agreed to take the following action:
1. Apologise in writing to Mrs X.
2. Pay Mrs X £250. This is a symbolic payment to acknowledge the Council’s failure to properly consult with her and failure to refer her complaint to its Public Protection Department.
3. Refer Mrs X’s noise complaint to the Council’s Public Protection Team to allow them to offer advice to Mrs X about the noise nuisance from the Home. Upon completion of this investigation, the Council should notify Mrs X in writing of its findings.
40. These actions should be completed within four weeks from the date of my final decision.

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Final decision

41. The Ombudsman has found the Council to be at fault in the way it responded to her complaint about noise and related matters. A suitable remedy had been agreed by the Council.

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Investigator's decision on behalf of the Ombudsman