Summary: Miss X complains that the Council has not taken action about a statutory noise nuisance from her neighbour. She says she is unable to sleep and the situation causes stress. The Ombudsman does not find fault with the Council.

The complaint

1. The complainant, who I refer to here as Miss X, complains that the Council has not taken action on a statutory noise nuisance from her neighbour. She says the Council’s investigation did not consider all the evidence she submitted and did not include all the facts. She says she does not understand why the Council will not evict the neighbour, and the Council has taken too long to tell her it is not responsible.
2. Miss X says she is unable to sleep, the situation is causing stress, and impacts on her enjoyment of her home.

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The Ombudsman’s role and powers

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)

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How I considered this complaint

4. I considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments before I reached a final decision.

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What I found

What should have happened

5. Under the Environmental Protection Act 1990, if noise causes a statutory nuisance, authorities are required to take action to ‘abate’ (reduce) such nuisance. To be a statutory nuisance, the law says the noise must be unreasonable and must substantially interfere with the use or enjoyment of a home, or must injure, or be likely to injure, health.
6. Councils are required to investigate complaints of noise nuisance. A council will gather evidence to establish whether or not the noise is causing a statutory nuisance. If it finds the noise is a statutory nuisance it will serve a noise abatement notice requiring the nuisance to be stopped. Failure to comply with an abatement notice can result in court action and a fine.
7. There is no fixed point at which noise becomes a statutory nuisance. Councils will rely on professional environmental health officers to gather and assess evidence of noise and decide if a statutory nuisance exists.
8. Officers will normally visit the complainant’s home and/or a nearby property to identify any noise and its source. In assessing the noise, officers will take account of several factors such as what is causing the noise, the local area, time of day, and frequency and duration of the noise.
9. Councils must also consider how the noise affects the average person, who may not share the specific circumstances of the complainant. In practice, this means councils have some discretion deciding whether noise is a statutory nuisance. The primary aim of any action is to modify the behaviour of the perpetrator.
10. A person may take their own private legal action about noise if they wish. They can do this through the courts.

What happened

11. Miss X lives next door to Mr D. Mr D has a learning difficulty and mental health conditions.
12. In late 2018, Miss X complained to the Council about noise Mr D made. Officer A from the Council’s Environmental Health team visited Miss X in May 2019.
13. Later that month, Officer A asked for a meeting with core professionals working with Mr D, to work on an action plan. After witnessing Mr D’s behaviour, Officer A decided the Council would not be able to take any formal action against Mr D because of his conditions, and decided to work with other professionals to address Mr D's behaviour (the cause of the noise).
14. There were professionals’ meetings in June and July. In August, Mr D’s case was referred to the Council’s Adult Social Care team. There were two further professionals’ meetings in September.
15. During this time, Miss X continued to complain to the Council about the noise. In October, the Council assigned Miss X a single point of contact in the Adult Social Care team that she could contact.
16. There were further professionals’ meetings in October and November.
17. Miss X continued to complain about noise. In February 2020, Miss X made a formal complaint to the Council.
18. The Council’s stage one complaint response said Mr D’s disabilities cause the behaviour which results in noise. The Council explained its duties to investigate noise complaints. It said it was not appropriate to serve Mr D with an abatement notice, or prosecute him for non-compliance, because that would be unlikely to control the noise.
19. The Council said it had, instead, been working with Mr D’s housing provider and care provider to try and resolve the problem. It had arranged meetings to try and provide practical solutions.
20. The Council said it had not determined that a statutory nuisance existed, so it had not taken any enforcement action. It said it would arrange further meetings to review ways to control the noise.
21. Miss X asked that her complaint be dealt with at stage two of the complaints procedure.
22. The Council did not uphold Miss X’s complaint. In its stage two response, the Council confirmed it had listened to the noise logs she submitted. It acknowledged that the situation was frustrating to Miss X, and explained that Mr D is severely disabled and easily distressed, which leads to banging, shouting and screaming.
23. The Council said it was reasonable to assess and consider whether it could achieve another outcome when it was not in the public interest to prosecute Mr D. It said that abating the noise was a more reasonable, proportionate, and practical approach in the circumstances.
24. The Council said it was working with other agencies involved with Mr D, and had considered noise-reducing options, for example, locking Mr D’s windows. Miss X said she wanted the Council to evict Mr D because of the noise. The Council said the housing association provided Mr D’s accommodation, so eviction was outside the Council’s control.
25. The Council said Miss X can take her own legal action about the noise.

Analysis

Statutory nuisance

26. Miss X complains that the Council has not taken action on a statutory noise nuisance from her neighbour.
27. As I have said above, councils have some discretion in deciding whether noise is a statutory nuisance or not. In this case, the Council investigated and was not satisfied that a statutory nuisance existed. However, it did recognise that Mr D’s behaviour had the potential to cause disturbance.
28. The Council has worked, and is still working, with appropriate agencies involved with Mr D’s care to resolve the noise problems. It says there has been a significant reduction in the number of incidents.
29. The primary aim of any action is to modify the behaviour of the perpetrator. In this case, the Council did not find a statutory nuisance, so it was under no obligation to take further action. However, it has taken further action in working with other agencies to reduce the noise. This is positive. For this reason, I do not find fault.

Miss X’s evidence

30. Miss X complains that the Council’s investigation did not consider all the evidence she submitted and did not include all the facts.
31. I am satisfied that the Council considered all the evidence Miss X submitted. This includes the video and voice recordings she made and her spreadsheet of incidents.
32. Miss X says the Council’s investigation did not consider ‘all the facts’, meaning its report did not include Miss X’s allegation that Mr D threw a CD at her while she was in her garden.
33. I do not find that an allegation of assault should be included in an investigation into noise nuisance.
34. I find that the Council’s investigation into whether this was a statutory noise nuisance considered all the evidence it should have. I do not find fault with the Council’s investigation.

Eviction

35. Miss X says she does not understand why the Council will not evict Mr D.
36. The Council has no responsibility for Mr D’s tenancy, or any power to evict him. This is solely the responsibility of the housing association. The Council explained this to Miss X in its stage two response to her complaint.
37. I do not find fault here.

Communication

38. Miss X complains that the Council has taken too long to tell her it is not responsible for Mr D’s tenancy.
39. Miss X asked the Council about this in her request for consideration at stage two, in February 2020. The Council told Miss X in its stage two response (March 2020) that it was not responsible for Mr D’s tenancy.
40. I find that the Council answered Miss X’s question in an appropriate timeframe. For this reason, I do not find fault.

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Final decision

41. I have completed my investigation. I do not uphold Miss X’s complaint because I find no fault.

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Investigator's decision on behalf of the Ombudsman