Summary: Ms X complained the Council failed to properly investigate her complaint about noise from neighbours. She also said the Council failed to make reasonable adjustments which reduced her ability to engage in its investigation. The Ombudsman finds the Council at fault because there were some delays during the investigation. However, the delays did not have a significant impact on the outcome. Apart from the delays, the Council investigated Ms X’s complaint as we would expect and appropriately considered her request for reasonable adjustments. The Council has provided an appropriate apology to
Ms X for the delays.

The complaint

1. Ms X complained the Council failed to properly investigate her complaint about noise from neighbours. She said the noise amounted to a statutory nuisance and unreasonably interfered with her use and enjoyment of her home. She also said the Council failed to make reasonable adjustments which reduced her ability to engage in its investigation.
2. Ms X said because of the Council’s fault, the noise was still a problem. She wanted the Council to agree to her requests for reasonable adjustments and investigate her complaint properly.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). Ms X complained to us about events from December 2017 to July 2019. I have decided there are good reasons to investigate the period December 2017 to September 2019. Ms X first complained to the Council about the noise nuisance in December 2017. The Council later addressed her complaints about its handling of her case and sent her a final complaint response in
   September 2019. Ms X says the nuisance is ongoing, despite her attempts to work with the Council to resolve it.
4. 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
7. 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

8. I read Ms X’s complaint and spoke with her about it on the phone.
9. I made enquiries of the Council and considered information it sent me. I also considered information Ms X sent me.
10. Ms X and the Council had the opportunity to comment on a draft of this decision. I considered the comments received before making my final decision.

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What I found

Legal and administrative background

Statutory nuisance

11. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
12. 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.
13. For the issue to count as a statutory nuisance, the council must decide it:
• unreasonably and substantially interferes with the use or enjoyment of a home or other premises; and / or
• injures health or is likely to injure health.
14. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or make site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
15. Once its 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.

Abatement notices

16. If a 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 try to address the problem informally.
17. 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.

The Council’s noise control policy

18. The Council has a policy for complaints about noise nuisance. The policy says officers will do their best to try to witness the noise and ask complainants to keep diary sheets. It says if diary sheets are not submitted within 3 weeks of the complaint, it will presume the noise nuisance has stopped. It says without witnessing the nuisance, there is only limited action the Council can take. If, after reviewing the evidence, the Council considers the noise amounts to a statutory nuisance, the Council will usually serve an abatement notice on the person considered responsible.

Reasonable adjustments

19. The Equality Act 2010 puts a duty on councils and other bodies to consider and make reasonable adjustments for disabled people, if appropriate. It aims to ensure a disabled person can access and use services to the same standard as non-disabled people, and that a person is not substantially disadvantaged because of their disability. What is “reasonable” is not set out anywhere in law. It depends on several factors including the size and nature of the organisation and the nature of services provided. Reasonable adjustments may include:
• Changing the way things are done;
• Making changes to overcome physical barriers;
• Providing extra aids and services e.g. providing extra equipment or an additional service.

What happened

20. Ms X has a health condition and learning difficulty. Ms X has been in dispute with her neighbours for several years. She complained about noise from a neighbouring property in December 2017.
21. The Council replied to Ms X in February 2018, apologising for its delay. It asked Ms X to complete attached diary sheets and provide a contact number so it could arrange a visit to witness the noise.
22. Ms X replied the next day. She said she would prefer communication by email and, due to her disability, would keep diary sheets in her own format. The Council says it accepted what Ms X said but did not reply to her. Ms X did not submit diary sheets at this time.
23. The Council’s next action was in May 2018 when it contacted Ms X again. The Council emailed Ms X, referred to Ms X’s email reply in February and asked her to send her own log sheets in if there were future noise complaints.
24. The next day Ms X told the Council she was unhappy about a lack of contact since February. She asked what adjustments the Council felt would be reasonable to allow her to participate in its investigation.
25. In June 2018, Ms X sent the Council her diary sheets. The Council advised her to report continuing problems by using its web form.
26. In July 2018, Ms X contacted the Council again. The Council replied and apologised for not responding to her May email. It said it had now received her diary sheets. The Council said it was satisfied with her sending in her own diary sheets. It said it hoped this showed the Council was willing to work with Ms X’s disability and answered her question about what adjustments the Council felt would be reasonable to allow her to participate in its investigation.
27. Ms X contacted the Council again in August. She said she had sent diary sheets but did not think the Council was taking her complaint seriously. She said the Council had not answered her question about what adjustments it considered would be reasonable.
28. In October 2018, Ms X contacted the Council again. She said it had not responded to her August email.
29. In November 2018, the Council wrote to Ms X. It apologised to her for the delay in replying. The Council suggested a meeting to discuss her complaint and asked Ms X to suggest a date that would suit her.
30. In December 2018, the Council asked her to send further diary sheets. It said it would like to arrange a visit to her home for officers to try to witness the noise. It said it would agree her request for at least one of the visiting officers to be female.
31. Ms X queried why the Council repeatedly pushed for Council officer visits when she had told the Council it would exacerbate her health conditions. She said she was not refusing a visit but wanted to discuss, in the proposed meeting, how officer visits could be achieved.
32. The Council again suggested a meeting and Ms X gave some dates for
    January 2019. It asked Ms X to send in recent diary sheets.
33. In January 2019, Ms X and the Council agreed a meeting date. The Council offered Ms X the choice to meet at home or at Council offices. The Council sent Ms X a meeting agenda. Ms X was dissatisfied with the agenda, as it included items about her behaviour and her relationship with her neighbours. Ms X wanted the meeting to focus solely on her concerns about noise from a neighbouring property. The Council said it was appropriate to also discuss her behaviour at the meeting due to the history of dispute between her and her neighbours. The Council agreed to add her additional items to the agenda and said it could adjust the proposed timings to meet her needs. It agreed she could bring a legal representative if she was concerned the Council was not impartial.
34. A few days before the meeting, Ms X told the Council she could no longer attend the meeting, for health reasons.
35. The Council wrote to Ms X and asked her to:
• provide recent diary sheets;
• propose 3 future dates for a meeting;
• tell the Council of any adjustments it could make which would allow officers to visit her home to witness the noise.
36. Ms X sent in diary sheets. She said she could not propose future dates as she was unwell and was uncertain when she would be well enough to attend. She said she did not want to discuss how officers could visit her home by email but would talk about this when she met with the Council.
37. The Council contacted Ms X in May and June 2019 and offered to meet her. Ms X said she would get in touch when she was ready to arrange the meeting.
38. In July 2019, Ms X complained to the Council. She said the Council had not acted impartially and had not properly investigated her complaint about noise nuisance. She also said the Council had shown disregard for her disability.
39. The Council responded to her complaint. It said it was satisfied officers had recognised her disability and dealt with her adjustment requests in line with the Equality Act 2010. It said it had already made some adjustments including:
• flexibility on the place and date of the proposed meeting;
• agreeing for her to have support at the meeting.

It said officers had made every effort to investigate her complaint about noise, but she had not yet told the Council what adjustments were needed to enable officers to visit her property and witness the noise.

40. In August 2019, the Council issued an abatement notice against
    Ms X. The Council said it served Ms X with the notice as it considered Ms X was the likely cause of noise which was having a detrimental impact on her neighbours’ health. Ms X has appealed the abatement notice in the courts.
41. Ms X was dissatisfied with the Council’s response to her complaint. She said the Council’s complaint investigation was flawed. She said the Council had insisted on discussing allegations against her, as well as her complaint about statutory noise nuisance, at the same meeting. She said the Council had refused two separate meetings and it could have met her needs by holding a meeting solely to discuss the noise she said was affecting her. Because it would not do this, the Council had not met her needs. She said if the Council had made this adjustment, she could have discussed with the Council how officers could visit her property to witness the noise.
42. The Council sent Ms X a final complaint response. It said officers had acted appropriately. Although it accepted Ms X did not want to discuss counter allegations at the same time as her own complaint, the officer involved considered the two matters were connected so it was appropriate to discuss both issues at the same time.
43. Ms X remained dissatisfied and brought her complaint to us.

My investigation

44. In its response to my enquiries, the Council said it tried many times to visit Ms X’s property to witness the noise over several years, but Ms X had not allowed its officers access. It said it considered whether it could install noise recording equipment but this was not suitable, as the equipment could not confirm where the noise came from. It said Ms X and her neighbours agreed that a noise existed, but not where it came from. It said officers needed to visit her property to witness the noise and establish where the noise was coming from.
45. It said there was a long history of conflict between Ms X and her neighbours, and the Council wanted to focus on resolving this. To do this, it was right to propose discussion about her behaviour as well as that of her neighbours at the meeting.
46. It said it had it had made several adjustments to try and meet Ms X’s needs. It said these included agreeing to her requests to:
• send female officers to her home to witness the noise, if available;
• change the meeting agenda and be flexible to adapting to her needs during the meeting;
• use her own diary sheets;
• bring an advocate and legal representative to meetings.

Analysis

47. Ms X first complained to the Council about noise from a neighbouring property in December 2017. The Council did not respond to the complaint until February 2018 when it asked her to complete diary sheets and provide contact details to help arrange a visit to witness the noise. Taking almost two months to respond to a noise complaint is too long and is fault by the Council.
48. Ms X did not send the Council diary sheets until June 2018. The Council’s policy says if a person does not send diary sheets within 3 weeks, it will presume the nuisance has stopped. Ms X did not send her diary sheets until June 2018, so before this, the Council did not know if the noise nuisance was continuing.
49. Ms X sent diary sheets in June 2018. Between June and November 2018, I have seen no evidence to show the Council considered these or discussed with Ms X what, if any, further steps it proposed to take to investigate the noise. That delay is fault.
50. The Council also delayed replying to Ms X’s emails between May and
    November 2018. This poor communication caused Ms X frustration. The Council has apologised to her for the delays in replying to her emails, which is an appropriate remedy.
51. After its delays, the Council tried to investigate the noise complaint from November 2018 onwards by meeting Ms X to discuss what it saw as all the relevant issues and visiting her to witness the noise she complained about. The Council was not at fault in using this approach. But, from November 2018 to the end of the period under investigation, September 2019, Ms X felt unable to agree to any meeting. Neither did she consent to officers visiting to witness the noise or tell the Council what adjustments she needed to enable officers to do so. Ms X has still not consented to visits. Given these complications, on balance, I consider even if the Council had considered her diary sheets sooner, it would not have significantly changed the course of events or the outcome of its investigation of Ms X’s noise complaint.
52. The Council acted appropriately by proposing a meeting to discuss her complaint in November 2018. It considered and agreed several adjustments to try to meet Ms X’s needs and engage her in the process. It offered her a choice of where to meet. It agreed to add Ms X’s additional items to the agenda and said it would be flexible with the agenda during the meeting. It agreed to her bringing a legal representative. The Council considered her requests for reasonable adjustments appropriately and is not at fault.
53. The Council was not at fault for proposing to discuss Ms X’s behaviour and her relationship with her neighbours at the meeting, as well as discussing her own concerns. It considered her request for a meeting solely to discuss the noise she said other people were making. It did not agree to this because it considered the issues were interlinked. Records show a history of neighbour dispute, and the Council had recently issued an abatement notice against Ms X as the likely cause of noise. As the Council considered the issues properly it is not at fault.
54. The Council considered installing noise recording equipment but had good reasons to decide this was not suitable. The equipment would not confirm where the noise came from.
55. The Council made appropriate efforts to engage with Ms X. Ms X did not consent to officers visiting her home to witness the noise or tell the Council what adjustments would enable officers to do so. The Council’s policy says that without witnessing the noise, there is limited action the Council can take. As the Council made appropriate efforts to engage with Ms X it is not at fault.

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Final decision

56. I have now completed my investigation. There were some delays by the Council but they did not have a significant impact on the investigation of Ms X’s noise complaint. The Council has provided an appropriate apology for its delay replying to Ms X’s emails. Apart from the delays, the Council investigated as we would expect and appropriately considered her requests for reasonable adjustments.

Parts of the complaint that I did not investigate

57. I have not investigated the Council’s decision to issue Ms X with an abatement notice. This is because Ms X has appealed this notice through the courts.

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Investigator's decision on behalf of the Ombudsman