Summary: There was fault by the Council, in this complaint about alleged anti-social behaviour. Although it was for the Council to decide whether there was anti-social behaviour or a noise nuisance, it did not consider whether there was action it could take under the Housing Health and Safety Rating System. This caused an uncertainty, which the Council has agreed to remedy. The Council has also agreed to remind its staff of the importance of keeping clear and comprehensive records. There was also fault by the Council, as it did not respond to a question about the Community Trigger, but this did not cause an injustice. We have therefore completed our investigation.

The complaint

1. The complainant, to whom I will refer as Miss F, says the Council has not properly considered or taken to action to resolve anti-social behaviour from the resident of the flat above her own.

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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. 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. Local authorities are not responsible for the management of social housing by housing associations. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)

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How I considered this complaint

5. I reviewed the Council’s notes and records, and a selection of its correspondence with Miss F.
6. I also shared a draft copy of this decision with each party for their comments.

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What I found

7. There is a complex history to this matter. The following chronology is intended only to give an overview of the Council’s substantive actions here – it does not describe everything which happened.
8. I am also unable to disclose some details here, for reasons of data protection.
9. Miss F and her family live in a ground floor flat, which they have rented from a Housing Association (HA) for several years. In October 2018, the HA housed a woman with a small child in the flat above.
10. In November, Miss F contacted the Council. She complained she was being disturbed by noise from the neighbour, particularly from the TV set and from the neighbour and her child moving around the flat.
11. The Council responded to Miss F on 5 December. It explained how it investigated noise complaints, and asked Miss F to complete diary sheets to illustrate the problem, to which she agreed. The Council also cautioned Miss F that its powers to resolve domestic noise problems of this type were limited.
12. Miss F logged another noise complaint with the Council on 31 December. She said the neighbour was having a party with loud music, and that she had failed to turn it down despite being asked to by Miss F’s partner. She said they also contacted the police, who had said somebody else had reported the same issue. The Council officer processing the report noted Miss F already had an open case, and said they would contact her to ask her not to register multiple complaints.
13. The Council received Miss F’s diary sheets on 21 January 2019 and assigned her case to an environmental health officer to investigate. I will refer to this officer as Officer Y.
14. Officer Y noted on 13 March he had contacted an officer at the HA to discuss the case. The HA officer (‘Ms J’) said the HA had ordered carpets to put down in the upstairs flat and these were due for delivery that week. However, she also said she considered Miss F was “oversensitive” and that she would no longer deal with her.
15. Officer Y visited Miss F’s property on 18 March for approximately one hour. He discussed the problems with Miss F and her partner. They explained their main concern was noise from walking, and what they believed was running and jumping, by both the neighbour, her child, and the neighbour’s partner. They also complained about repeated opening and closing of windows, loud voices, and music from occasional late-night gatherings, although they said they could no longer hear the TV. They also said they were concerned about intimidation and had reported some matters to the police.
16. Officer Y noted he heard some isolated bangs from the upstairs flat, but did not regard this as significant, and that Miss F said she could not hear light switches being operated in the flat or normal conversation. He considered this meant the sound insulation between the flats was not inadequate. Officer Y recorded he had offered to install noise-monitoring equipment, but Miss F had declined.
17. After further consideration, Miss F asked for noise-monitoring equipment to be installed, and Officer Y visited on 25 March to do so, along with another officer from the HA (‘Ms P’). Officer Y noted he had set up the equipment “unconventionally” to record for 60 minutes each time it was activated, as he considered this would give a more useful insight into the noise than five-minute recordings. Ms P said she intended to discuss a recent gathering with the neighbour, but agreed to wait until the noise monitoring exercise was complete.
18. Officer Y reviewed the noise-monitoring in detail after 2 April. He noted there was a low level of background noise, meaning noise from the upstairs flat would be more noticeable. He concluded the noise was generally unavoidable domestic noise, although it was frequent and had the capacity to disturb Miss F. However, Officer Y did not consider it constituted unreasonable behaviour by the neighbour, or that it could amount to a statutory nuisance, and that it would be better to mediate between the parties.
19. On 15 April, Officer Y and Ms P visited the neighbour. Officer Y discussed the noise problems with the neighbour. He then asked the neighbour to walk around in her flat, and to get her daughter to walk and run about, while he went downstairs to Miss F’s flat to listen to the noise. He noted that some of these activities produced clearly audible noise.
20. Officer Y also noted that acoustic boarding had at some point been installed as a walking surface in the upstairs flat, which might indicate there had been historical noise complaints. Officer Y confirmed to the neighbour there was no evidence she was behaving unreasonably, but asked her to do what she could to limit the noise.
21. Officer Y then spoke to Miss F. He said he did not consider noise from music and voices to be “material”, although he noted Miss F disagreed with this. He then suggested they review matters after the installation of new carpets in the upstairs flat.
22. The Council’s notes say Officer Y emailed the HA on 16 April to say it was unlikely it could consider the noise problems to amount to a statutory nuisance.
23. In late April, the HA confirmed it had laid new carpet in the upstairs flat, using the existing carpet as an underlayer.
24. The Council’s notes say Officer Y had an exchange of emails with Miss F in May, where he explained it was unlikely the noise would constitute a statutory nuisance. In June, Miss F’s partner contacted the Council to complain about a party the neighbour had held. Officer Y replied, acknowledging this was a different type of noise to that which the Council had already investigated. Miss F’s partner replied to say he and Miss F did not want Officer Y involved in the matter.
25. Miss F’s partner submitted several further complaints over a few days at the beginning of July, about the noise of footsteps and similar from the upstairs flat. He demanded Officer Y was not to be informed of this.
26. On 1 August, Miss F emailed the Council to ask how to activate the Community Trigger. Both she and her partner then raised several further noise complaints in August.
27. Beginning in September, Miss F began compiling daily noise diaries, with updates every few minutes.
28. On 23 October, a Council officer, Officer Z, recorded he had attended Miss F’s property because noise monitoring equipment had stopped working. He noted he had replaced the equipment with an alternative set.
29. The Council’s notes say, on 4 November, Officer Z visited Miss F’s property to install noise monitoring equipment. The notes also say Officer Z visited to collect the equipment on this day.
30. Officer Z reviewed the evidence on 4 November. He noted the noise largely consisted of footsteps from the upstairs flat. Officer Z emailed the HA, and explained the Council would not consider this a statutory nuisance or anti-social behaviour, and could not take any further action. However, there remained a problem of noise emanating from the upstairs flat, which the HA needed to address.
31. The Council’s notes say it visited Miss F again on 7 November. Then, on 22 January 2020, it sent a letter to Miss F, closing its involvement in the matter.

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Legislative background

Antisocial behaviour (ASB)

32. Councils and the police can issue Community Protection Notices (CPN) to prevent anti-social behaviour which is having a detrimental effect on the community's quality of life and is considered unreasonable. CPNs require the behaviour to stop and, where appropriate, require reasonable steps to be taken to ensure it is not repeated. Failure to comply is an offence and may result in a fine or a fixed penalty notice.
33. Councils must issue a written warning in advance of the CPN. It is for the person issuing the written warning to decide how long is appropriate before serving a CPN. A CPN can be appealed in the Magistrates' Court within 21 days by the recipient if they disagree with the council’s decision.
34. A council may issue a CPN while it is investigating whether the behaviour constitutes a statutory nuisance. Issue of a CPN does not relieve the council of its obligation to serve an abatement notice under Part 3 of the Environmental Protection Act 1990 where the relevant test is met.

Statutory nuisances

35. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
36. Typical things which may be a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street
• smoke from premises
• smells from industry, trade or business premises
• artificial light from premises
• insect infestations from industrial, trade or business premises
• accumulation of deposits on premises

37. For the issue to count as a statutory nuisance, it must:

• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
• injure health or be likely to injure health.

38. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
39. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
40. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
41. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
42. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
43. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

Housing health and safety rating system (HHSRS)

44. The Housing Act 2004 introduced the Housing Health and Safety Rating System (HHSRS). Since 2006 councils have been able to use the HHSRS to assess potential risks to the physical and mental health and safety of building occupants from a number of different hazards. One of the hazards is exposure to noise inside a dwelling, including exposure to noise in the home caused by a lack of sufficient sound insulation.
45. Government guidance sets out how councils should inspect residential properties under this system. The system evaluates potential risks to health and safety from deficiencies identified during inspection. An inspector will score each hazard identified according to its severity and its potential to cause injury to a person who is most vulnerable to that hazard. Scored hazards are then categorised. Where a Category 1 hazard exists a council has a duty to take appropriate enforcement action. Where a Category 2 hazard exists a council has the power to take enforcement action if it considers such action appropriate.

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Analysis

46. Miss F pursued several separate formal complaints with the Council about its handling of this matter. She has raised an extremely large number of issues, particularly relating to her perceptions of Officer Y’s approach to the matter – for example, that Officer Y ‘passed control’ of the investigation to the HA, that he invited an HA officer to visit Miss F’s flat without her permission, and that he failed to inform her the noise monitoring equipment he installed would record for 60 minutes each time it was activated. The Council has largely dismissed these complaints.
47. The Ombudsman has limited resources and is publicly-funded. Our investigations are not intended to provide a forensic, hypercritical analysis of the Council’s actions; but simply to highlight and resolve clear injustice, arising from failures in how the Council has administered its duties.
48. The Council’s role was to investigate the noise issues, and consider whether it should use its powers to intervene. Where the property / properties in question belong to a housing association, it is normal for the local authority to co-operate with the HA during the investigation. It is also for the Council to decide how best to deploy and use its equipment – for example, deciding what length of recording would provide the best evidence. Without providing a detailed analysis of whether there was any fault in the many small issues Miss F has raised, I do not consider there is any real prospect I would be able to identify a significant injustice arising from these.
49. Any real potential injustice to Miss F here arises from substantive failures in the Council’s investigation process. To give a proportionate response to Miss F’s complaint, therefore, I will instead focus my consideration on a general overview of the Council’s involvement in her case. For the same reason, I have not provided a detailed breakdown of the complaints Miss F made to the Council, or its responses.
50. I must also note, separately, the Ombudsman’s role is to review the Council’s adherence to procedure. We do not provide a route of appeal over contested decisions, and the Ombudsman does not substitute the professional judgement of Council officers for his own. The Ombudsman cannot uphold a complaint simply because a person does not share the Council’s opinion on a particular matter.
51. Turning to the substantive issues here, Miss F first contacted the Council in late 2018 to complain about noise from the upstairs flat. The Council responded promptly, providing her diary sheets to complete and explaining how it investigated complaints of this nature.
52. The Council received Miss F’s diary sheets in January 2019, and allocated the case to Officer Y. In March, Officer Y contacted the HA, which explained it had ordered carpets for the upstairs flat. Officer Y then visited Miss F to discuss the noise. Later in March, he returned and installed noise monitoring equipment, after Miss F had originally turned the equipment down.
53. This series of events appears conventional for an investigation of this type. I do note, however, it took some four to five months from Miss F’s first contact with the Council for it to arrange a visit. I appreciate this period straddled the Christmas holidays though, and that the first few weeks involved Miss F completing diary sheets, which may explain some of this delay, but I am still concerned this took an unusual length of time.
54. In April, Officer Y collected the noise monitoring equipment and analysed the results. He noted there was audible noise from the upstairs flat. Although the noise appeared largely domestic in nature, he considered some had the capacity to disturb Miss F. However, he did not consider it amounted to a statutory nuisance.
55. Officer Y returned to the property later in the month with an officer from the HA. They performed some tests, by asking the upstairs tenant to move about in the flat, while Officer Y listened to the noise this produced from Miss F’s flat. He also noted it appeared there had been historical efforts to lessen the impact of noise from the upstairs flat.
56. The Council quickly established there was a problem with noise at the property. However, it was the Council’s view this did not amount to a statutory nuisance; nor could it be called anti-social behaviour, as it did not appear the neighbour was deliberately or inconsiderately creating noise. Rather, the problem was with the design of the building.
57. I can see Miss F does not agree with this view. She has made clear in the various lengthy noise diaries she submitted to the Council she believed the neighbour was acting maliciously.
58. However, the decision whether something amounts to a statutory nuisance, and anti-social behaviour, is a matter of professional judgement. It is not for me to make my own decision about this. Officer Y gave a clear explanation for why he did not consider the Council could find a statutory nuisance or anti-social behaviour, and I am satisfied with this.
59. This said, I am concerned the Council did not fully appreciate its powers here. Although I accept its conclusions about statutory nuisance and anti-social behaviour, it is not the case the Council has no powers to intervene where there is a noise problem arising from poor sound insulation. The HHSRS specifically allows the Council to treat this as a potential hazard, and gives it powers to take enforcement action. I see no consideration of this in any of the Council’s notes. This is fault.
60. This is not to say the Council should have taken enforcement action under the HHSRS here. Before doing so, the Council would need to have been satisfied the noise problems were sufficiently severe as to amount to a hazard to health. Again, I appreciate Miss F may consider this to be the case, but it is not for me to say, and I cannot speculate what the Council’s own decision would have been, had it considered the matter under the HHSRS.
61. I also note, even if the Council had decided it needed to take some kind of enforcement action, this would have been to require the HA to resolve the noise problem. The HA was clearly engaged in the matter here, and, at least during the early stages, was seeking a solution by laying new carpets in the upstairs flat. So it appears possible the Council would not have resorted to formal enforcement action at that stage, even if it had found the noise to constitute a hazard under the HHSRS.
62. The fact remains Miss F continued raising complaints about noise, even after the new carpets had been laid. This led to a further investigation later on by the Council, involving Officer Z. Again, as a result of this investigation, the Council concluded there was no evidence of a statutory nuisance or anti-social behaviour, but recognised there was a problem arising from the sound insulation. It also reiterated, wrongly, it had no power to take action under these circumstances.
63. And, since the Ombudsman accepted this matter for investigation, Miss F has told me the HA has now replaced the floor in the upstairs flat.
64. Bringing this all together, I consider there is an injustice to Miss F here. As I have said, I cannot speculate what the Council would have decided, had it considered the matter under the HHSRS. But it is clear the Council recognised there was some problem with sound insulation at the property, and that this was enough to cause disturbance to Miss F. This creates a question of uncertainty about what might have happened if the Council had properly considered its powers, which I consider it should remedy.
65. I also consider the Council should take steps to remind officers to consider the Council’s powers under the HHSRS, when investigating similar matters in future.
66. On a more general point, I must also criticise the Council for its record-keeping here. It has provided me with a significant volume of information in its response to my enquiries, including its case notes and a chronology detailing its actions. But, while the initial investigation and conclusions seem reasonably well-recorded, there are significant gaps and contradictions in the records for the second investigation.
67. For example, after the closure of the original investigation, Miss F began raising further noise complaints in June and July. There is nothing in the Council’s notes or chronology to indicate it responded to these at that time.
68. However, the notes then say Officer Z visited Miss F’s flat on 23 October 2019, because noise monitoring equipment was malfunctioning. There is nothing at all in the notes to indicate when this equipment was installed.
69. The Council’s chronology then says Officer Z attended to install noise monitoring equipment, and also (separately) to collect the noise monitoring equipment, on 4 November. This may simply be a recording error, but it again creates a concern about the reliability of the Council’s records.
70. It is difficult to discern any substantive injustice to Miss F from this. However, it has created a difficulty for me in drawing a comprehensive timeline of the Council’s involvement in the case. On balance, I consider this to amount to fault. I will therefore make a recommendation here.
71. I also note, on 1 August 2019, Miss F emailed the Council’s general customer services address for advice on activating the Community Trigger.
72. The Community Trigger is a process which allows a person, who has made complaints of anti-social behaviour, to ask the relevant local bodies to review how they have handled the matter. The threshold for a trigger to be activated is decided locally, but will typically require the person to have made a certain number of complaints about anti-social behaviour (which have not been resolved to their satisfaction) over a certain period of time. The outcome of the review might be the creation of an action plan to address the anti-social behaviour, where this is considered appropriate.
73. I can see no response from the Council to Miss F’s request. And the Council has confirmed its Community Safety Team has no record of being notified about it, which I assume means those managing the customer services inbox did not forward Miss F’s email to it.
74. I again consider this to be fault. However, a simple internet search brings up the Council’s Community Trigger webpage, which explains the person should contact the local police to activate the Community Trigger. The Council’s Community Safety Team has also confirmed this is the advice it would have given Miss F, had it received her request.
75. Given the free availability of this information, therefore, and the fact it appears Miss F did not follow her request up, I do not consider the Council’s failure to address this represents a significant injustice.

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Summary

76. Miss F has raised a lengthy and complex series of complaints about the Council’s involvement in her reports of anti-social behaviour. I have not sought to provide direct or detailed responses to these complaints, as I cannot do so proportionately.
77. Overall, the Council did respond to her reports and investigate them. It gave clear reasons why it did not consider the noise to be the result of anti-social behaviour, or a statutory nuisance, and I am satisfied with this.
78. However, the Council has failed to recognise its powers under the HHSRS. This specifically allows the Council to take steps to enforce against noise arising from poor sound insulation. The Council acknowledged this was the likely cause of the problem here, but at several points wrongly declared it had no power to deal with it. This is fault.
79. I cannot speculate whether this would have made a substantive difference to the outcome. Determining whether the noise problems amounted to a hazard under the HHSRS is a matter of professional judgement. It is not for me to decide whether the Council should have taken enforcement action here.
80. But, given the clear evidence there was a noise problem, there is a significant degree of uncertainty. This warrants a remedy for Miss F. And the Council should also take steps to ensure its officers appreciate their powers under the HHSRS.
81. The Council should also remind relevant officers of the importance of keeping clear notes of their actions when investigating reports of anti-social behaviour and noise nuisance.

Agreed action

82. Within one month of the date of my final decision, the Council has agreed to:
• offer to pay Miss F £300 to reflect the uncertainty caused because it did not consider its powers under the Housing Health and Safety Rating System;
• remind relevant officers the Council has powers to tackle noise caused by poor sound insulation in domestic properties under the HHSRS, and it is not correct to say it can only intervene where the noise is because of anti-social behaviour or a statutory nuisance;
• remind relevant officers they should keep clear notes of their substantive actions and decisions when investigating reports of anti-social behaviour or statutory nuisance.

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Final decision

83. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman