Summary: Mr and Mrs C say the Council is at fault for the way it has dealt with their claims that their neighbours were inconsiderate and noisy. They also say the Council accused Mr C of acting inappropriately without evidence. They say this caused them injustice in that they were upset. The Council was at fault for failures at the start of its investigation. Thereafter, it carried out a proportionate, evidence-based inquiry into Mr and Mrs C’s concerns.

The complaint

1. The complainants, who I have called Mr and Mrs C, say the Council:
• Lost and failed to consider relevant information;
• Accepted the word of their neighbours over theirs;
• Accused Mr C without evidence;
• Refused to disclose information and evidence received from their neighbour;
• Failed to prevent their neighbours from causing a nuisance;
• Closed the file on their dispute without their agreement;
• Failed to provide an adequate, 24-hour service; and
• Communicated poorly

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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. 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

4. I spoke to Mr and Mrs C on the phone. I read the papers that they sent to the Ombudsman. I sent an enquiry letter to the Council requesting further information.
5. I sent a copy of my draft decision to Mr and Mrs C and the Council and invited comments. Having received them, I considered them and made some changes.

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What I found

What should happen

Anti-social behaviour

6. On-going anti-social behaviour such as the inconsiderate making of noise may need intervention by councils, police and registered social landlords.
7. Section 17 of the Crime and Disorder Act 1998 places a duty on councils to take action to combat anti-social behaviour. Councils will have a team to respond to and investigate complaints about anti-social behaviour, liaising with the police and other agencies as necessary.
8. Councils can discharge this duty using informal intervention such as mediation. They can also use the Environmental Protection Act 1990 in the case of noise nuisance. In more serious cases, they can use powers derived from the Anti-Social Behaviour, Crime and Policing Act 2014.

Noise nuisance

9. Complaints about noise are governed by the Environmental Protection Act 1990. On receiving a complaint about a noise nuisance, a council must investigate to see whether it amounts to a ‘statutory nuisance’. To do so, it must either:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
• Injure health or be likely to injure health.
10. The law says a statutory noise nuisance must be sufficient to cause distress to a person of normal sensitivity. Sometimes, when a complainant is genuinely distressed, councils may find that objectively, the noise is insufficient to amount to a statutory nuisance.
11. A council officer will therefore visit to make an independent judgment as to whether the noise amounts to a statutory nuisance. They will consider the timing and duration of the noise as well as the volume. Councils may use sound measuring equipment though there is no statutory requirement to do so.
12. If a council decides the noise amounts to a statutory nuisance, it must serve an abatement notice requiring the perpetrator to stop. If it decides that the noise made does not amount to a statutory nuisance it can continue to use informal intervention to try to solve the problem.

What happened

Background

13. Mr and Mrs C are a retired couple who live in a village in the Council’s area. Mr C is unwell. Nearby, on the other side of the quiet main road, there is a Council-owned housing complex. Several years ago, a younger couple, Mr and Mrs N, came to live in one of the Council’s housing units.
14. Initially, Mr and Mrs C say, the two couples were friendly but they later fell out. Mr and Mrs C say they do not know why. They say that, years later, Mr N began to verbally abuse Mr C when he went into the road between their houses.
15. They say Mr C felt threatened by Mr N’s dog and Mr and Mrs N would encourage it to bark aggressively at him. Mr N would stare aggressively at Mr C. Mr and Mrs N would play loud music and were sometimes rowdy.

The complaint

16. Mr and Mrs C say that, by summer 2018, they would shut their windows in the evening but the music would drown out their television. Occasionally, they would hear Mr and Mrs N arguing noisily. On one occasion, Mrs C thought she heard a physical assault and called the police.
17. Mr and Mrs C contacted the Council in late July 2018 and complained about noise. They said Mr and Mrs N were ‘goading their dog to bark and growl and played ‘very loud music’, They said this had been going on for six to eight months.
18. An officer in the Council’s Neighbourhoods team wrote to them in early August 2018. She told them the Council had contacted Mr and Mrs N and given them advice about how to reduce noise. The officer asked Mr and Mrs C to complete a noise diary of incidents and return it after a month. Mrs C recorded eight instances of dog barking and one instance of loud music in late July and August 2018. She returned the diary to the Council in early September 2018.
19. A housing officer, Officer O, spoke to Mr and Mrs C about their complaint at their house in late September 2018 where they set out their case as above.
20. Officer O interviewed Mr and Mrs N in early October 2018. Mr N said he was a carer for his wife who has a mental health condition. He accepted they would sometimes played music but denied it was ever so loud as to justify complaints. They also accepted that their dog would sometimes bark.
21. Mr and Mrs N gave Officer O a letter allegedly signed by many of the residents of the social housing complex stating that Mr and Mrs N were ‘good friends and neighbours’ and ‘by no means cause any sort of disturbance that interferes with the peaceful way of life that we all enjoy’. Officer O gave them a diary sheet and asked them to record incidents of interference from Mr and Mrs C.
22. A day later, Mrs C phoned the Council complaining about noise. She said she had called out the police the day before and was unhappy that no one had responded to her call. Officer O called Mr and Mrs C and discussed the case with them. He told them about his discussion with Mr and Mrs N.
23. On 10 October 2018, Officer O wrote to Mr and Mrs C. Unfortunately, he used the wrong surname in his introductory line. He explained that, due to data protection legislation, the Council could not show the letter from residents to Mr and Mrs C nor could he say who had signed the letter.
24. In November 2018, Officer O wrote to Mr and Mrs C and said he intended to close the Council’s investigation as ‘I am satisfied that there is no grounds for us to take any action in this case’ and adding ‘I trust this now resolves the issue’.
25. In March 2019, Mrs C says a housing officer spoke to her on the phone and did not listen to her, instead, talking over her. Her notes recorded [Mr C] ‘is now being harassed by an officer who said she had checked up on us and we were not liked by the tenants [of the social housing complex]’.
26. The notes record that Mrs C believed that it was the Council’s ‘job to keep your tenant under control and not allow bad behaviour or antisocial behaviour’. She says she asked Officer O three times what their neighbours said they had done but Officer O would not tell her.
27. Officer O continued to investigate Mr and Mrs C’s allegations. In mid-October, he interviewed neighbours of Mr and Mrs N. Officer O spoke to three residents of the council housing complex. They said they got on well with Mr and Mrs N. One resident said complaints had been made because ‘someone in the village doesn’t like council tenants’. Another said that, while they occasionally played loud music, they would turn it down on request. Another said Mr and Mrs C regularly complained about council tenants.
28. In early November 2018, a senior officer said Officer O he had explored all avenues and should close his complaint. Officer O wrote to Mr and Mrs C and told them that the complaint was now closed.
29. However, it is clear that Mr and Mrs C do not feel the problem has been solved. In April 2019, a community engagement officer and a housing officer visited their home. The notes show that Mrs C said that her neighbours agreed with her but did not wish to complain themselves.
30. The notes say that Mrs C said she was dissatisfied because:
• The Council had not kept her informed at every stage of the case;
• It had lost information and had not considered it;
• She had not been able to contact Officer O about the case at weekends and during the evening;
• Officer O would not tell her what the allegations against Mr and Mrs C were, which Mr C, in particular, found upsetting;
• Officer O had closed the case while problems continued.
31. Mr and Mrs C told officers Mr N was violent and would have intimidated their neighbours into complaining about Mr and Mrs C. The Council’s notes say that they said Council officers should respond to their calls at any hour of day and night. Mr and Mrs C deny having said this. The notes recorded that Mr and Mrs C ‘were insistent that their issues should take priority’.
32. Mr and Mrs C provided the officers with four further incidents of noise nuisance in February and March 2019; two of the dog barking, two of music being played all of them during daylight hours between 9.30am and 2.30pm.
33. The meeting notes also record the following: ‘There are some grounds for Mrs C’s complaints regarding how this has been handled:
• The lack of coordination regarding the information sent in to us;
• Lack of adequate records and evidence of contacting Mrs C – no telephone notes etc;
• The accusation of Mr C while we also dismiss those against Mr N’
34. The notes continue ‘There is no simple resolution to this as the two parties have an animosity between them that will hinder any possible resolution’.
35. After the meeting, the officers instructed another officer, Officer P, to investigate. Officer P telephoned Mr and Mrs N’s neighbours to ask if there had been any noise issues in recent months. They said there had been none.
36. Officer P spoke to Mrs C. Officer P’s notes show she felt Mrs C focused on the history of the complaint rather than the current situation and what, if anything, could be done about it. Officer P says she let Mrs C finish before offering Mr and Mrs C sound recording equipment. Mrs C refused. Mrs C has a different recollection of the conversation. She says Officer P was dismissive and rude.
37. In September 2019, after receiving another complaint, Officer O visited Mr and Mrs N. Mr N turned his music up to full volume and opened his lounge windows. Officer O says he stood outside in front of the open window and could hear music but did not find it oppressive. He then walked across the main road to the bottom of Mr and Mrs C’s drive and listened again. He says he heard nothing.
38. Mr and Mrs N promised Officer O they would not play music with their lounge window open and would use earphones in future. Officer O wrote to Mr and Mrs N setting out the agreement he had reached with them on 10 September 2019.
39. In early October 2019, Officer O spoke to two neighbours of Mr and Mrs N who alleged that Mr and Mrs C were being unfair to Mr and Mrs N. One claimed to have seen Mr C looking into Mr and Mrs N’s garden with binoculars.
40. In November 2019, Mrs C again contacted the Council and made a further noise complaint against Mr and Mrs N. The council again offered noise monitoring equipment. Mr and Mrs C accepted. The Council installed a noise monitor in late November 2019. No noise incidents have occurred since.

Was there fault causing injustice?

Lost information/Failed to provide an adequate service

41. A file note from April 2019 shows the Council accepts it made errors in handling this case. This was fault. Mr and Mrs C suffered injustice as a result.
42. Mrs C complained in late July, the Council responded in early August, nearly two weeks later. There is no statutory time limit for responding to such complaints. Therefore, I cannot find fault for that although it could certainly have been quicker.
43. At first the Council tried an informal approach. This was sensible and there was no fault in doing so. It advised Mr and Mrs C to keep a noise diary. As evidence in noise disputes is vital, this too was sensible. Mr and Mrs C kept the diary and continued to correspond with the Neighbourhood team.
44. However, Officer O did not visit them until the end of September, nearly two months after the initial complaint. I have found that this was too slow and was caused by the errors which the Council has accepted. This was caused in part because Council records were not integrated and so individual officers were not aware of all Mr and Mrs C’s contacts.
45. In May 2019, the Council says it ‘integrated our file management system’. This, it says, should ensure that the service it provides is more fully integrated and customer focused. I accept that the Council has taken steps to remedy this fault.
46. Once Officer O took over the case, he conducted a proportionate, timely and fair investigation. He visited Mr and Mrs N. He told them someone had made a noise complaint. Officer O’s notes show Mr and Mrs N immediately guessed who had complained, although Officer O refused to confirm their identity.

Accepted the word of their neighbours over theirs

47. Officer O, like all officers investigating such allegations, was led by the evidence. For him to take any kind of enforcement action against Mr and Mrs N he would first have to gather evidence to show their complaint was justified. To that end, he spoke first to Mr and Mrs C and then to Mr and Mrs N. He then spoke to neighbours. This was sound investigative practice.
48.  
49. Mr and Mrs N said, in effect, that Mr and Mrs C had complained because they did not like Mr and Mrs N. They made counter-allegations against Mr and Mrs C.
50. Faced with two contrasting versions of events, without corroborating evidence, Officer O could not know which was true. Mr and Mrs N gave Officer O a letter signed by many of their neighbours which supported their version of events as it said they were law-abiding, considerate neighbours. Because Officer O had not witnessed the noise himself, this evidence might well have swung the balance.

Accused Mr C without evidence

51. Mr and Mrs C accuse the Council of accepting Mr and Mrs N’s version of events, over theirs. I do not accept this. Officer O’s job was to see if there had been a noise nuisance but, on investigating, he found much of the evidence supported Mr and Mrs N. He could not ignore this.
52. Officer O told Mrs C what Mr and Mrs N had said and about the supportive letter they had shown him. If Mr and Mrs C saw this as an accusation, that is not evidence that Officer O intended it to be. I do not uphold this part of the complaint.

Failure to provide evidence of allegations

53. Mrs C asked Officer O to show her the letter. Officer O refused on data protection grounds. I do not find fault. Officer O could not hand over the letter without the permission of those who signed it as it would have identified them.

Failure to control Mr and Mrs N’s behaviour

54. Mr and Mrs C feel that the Council has not done enough to control Mr and Mrs N’s behaviour. However, before it could take enforcement action of any sort, the Council had first to establish whether Mr and Mrs C’s complaints were objectively justified. This was a matter of evidence.
55. Officer O returned to the village on several occasions. He spoke to other residents who denied Mr and Mrs N listened to loud music and said Mr and Mrs C had complained about others, without justification, before. Mr and Mrs C deny this
56. Mr and Mrs C say Officer O’s investigation was an intrusion on their privacy. I do not accept this. Officer O was not investigating Mr and Mrs C. He did not tell the residents what to say. He could not ignore their evidence.
57. Officer O also listened to music outside Mr and Mrs N’s house. He did not believe it was a nuisance. He says he could not hear it at all at the bottom of Mr and Mrs C’s drive. Nonetheless, he asked Mr and Mrs C to agree not to listen to music with their lounge windows open and to buy some earphones. I do not find fault.

Closure of complaint November 2018

58. I do not find fault with the Council for closing its investigation in November 2018. A council does not have to keep a file open in perpetuity. A complainant can always make a fresh complaint, as Mr and Mrs C did in April 2019.

Closure of complaint April 2019/Rudeness of Officer P

59. Mrs C feels Officer P was rude to her on the phone. Conversely, Officer P’s notes make it clear that she found Mrs C did not listen to her. There is no recording so I cannot say whether this complaint is justified.
60. During the April 2019 phone call, Officer P offered Mr and Mrs C noise monitoring equipment. Mrs C refused it. Officer P again closed the case. She said that, if things deteriorated, she would open a new one. Mrs C has told me they did not want monitoring equipment because it would damage their property.
61. The Council did install noise monitoring equipment after another complaint in November 2019, I am informed there have been no allegations of noise since.

Unavailability of officers at nights and weekends

62. Mr and Mrs C complain that the Council provides a generally inadequate service. They say that Officer O should have been available at all times, including night-time and weekends to respond to their complaints.
63. Local government officers are contracted to work a limited number of hours at set times and cannot be required to work outside the terms of their contract without their consent. I do not find fault.
64. Councils must, however, provide a service sufficient to meet their statutory duty. There is no requirement for a single officer to control the case at all times and so the Council cannot be at fault on that basis. The new integrated records system should ensure that, whoever deals with any case will have access to its history.

Poor communication

65. Mr and Mrs C complain about poor communication from the Council. They say that, in one letter, Officer O addressed them by the wrong surname.
66. While this is clearly regrettable, it is inevitable that those who use template letters will occasionally make such mistakes. While this mistake may have caused offence, it is clear that none was intended and no injustice was caused. I do not intend, therefore, to make a finding of fault.
67. Otherwise, the Council’s written communications with Mr and Mrs C were of an acceptable standard.

Summary

68. The Council says ‘we have responded to incidents, addressed the allegations with our tenant and warned them of action for a breach of their tenancy agreement and ‘tried to gather the evidence needed to take further action but have been unable to gain any collaboration [sic] from any other resident.’ It adds ‘the [monitoring] equipment has failed to show any evidence’
69. It says, ‘The council does not tolerate anti-social behaviour from our tenants and we have used the full range of powers we have to address [this] issue…. We continue to work with [Mr & Mrs C] and have extended the normal time we leave sound recording equipment in their home …. Mr & Mrs C have informed the council it has been quiet for a while now and we hope this continues’.
70. Subject to the fault found above, I accept the Council’s statement.

Agreed action

71. The Council has agreed to apologise to apologise to Mr and Mrs C in writing for failures in the initial stages of its investigation of their noise complaint within three weeks of the date of this letter.

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Final decision

72. I have found the Council was at fault. The Council has accepted my recommendation to remedy the fault. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman