Summary: There was no fault in how the Council investigated reports of anti-social behaviour. The Council was entitled to decide there was evidence of unacceptable behaviour on both sides and serve warnings accordingly, and we have seen no evidence to support an allegation the Council was biased in favour of the complainant’s neighbour. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Mrs B.
2. Mrs B complains about the Council’s investigation of alleged anti-social behaviour by her neighbour, Miss P. In particular, she says the Council has not properly applied its policies and has shown bias towards Miss P.

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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)
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)
5. We cannot investigate complaints about the provision or management of housing let on a long lease by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5B, schedule 5, as amended)

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How I considered this complaint

6. I reviewed the Council’s correspondence with Mrs B, its case notes and its other internal correspondence.
7. I also shared a draft copy of this decision with each party for their comments.

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What I found

8. Mrs B is the owner-occupier of a semi-detached house. The adjoining property is social housing owned by the Council, and in 2017, it housed a woman with several children there. I will refer to the neighbour as Miss P.
9. Since then, both Mrs B and Miss P have made numerous allegations of anti-social behaviour against each other. These include, but are not limited to:

• Miss P listening to music or having her TV on too loud;
• Miss P carrying out unauthorised work to the party wall and boundary fence between the properties;
• Miss P having bonfires;
• Mrs B filming Miss P and her children in the garden;
• both parties being abusive and threatening towards each other.

10. Both the Council and police have been heavily involved in the dispute between Mrs B and Miss P.
11. In December 2019, Mrs B made a formal complaint to the Council. She said the Council had failed to provide her with updates; that there had been a lack of positive action; that there had been a lack of support by Council officers, with one in particular whom she accused of not being impartial; that Miss P had breached her tenancy agreement, without action by the Council; and that Council officers always visited Miss P first, whenever Mrs B made a complaint.
12. The Council replied on 20 January 2020. It said there had been numerous visits to Mrs B’s property, and highlighted a meeting in Mrs B had attended with two officers in November where they had discussed the case. It also said the current case officer had maintained contact since she had been allocated the case.
13. The Council said it had installed noise monitoring equipment at Mrs B’s property on three occasions, but did not consider there was evidence to support the service of an abatement notice or a community protection notice. The Council noted the case officer had suggested the service of a community protection warning on Miss P, but upon review, it had concluded it could not justify this. It apologised if Mrs B had found this misleading. The Council also said it had responded to two reports of fires in the previous three months and was satisfied it had dealt with these appropriately.
14. The Council explained it had a duty to investigate any counter-allegations made by Miss P, and had issued a standard noise letter to Mrs B as part of this. It said there was no evidence of “malpractice”, and that Mrs B may have witnessed officers visiting Miss P first in an attempt witness alleged noise nuisances at the first opportunity.
15. The Council acknowledged the case had been re-allocated twice to different officers, but said this was sometimes unavoidable and that Mrs B had been notified each time. It reiterated officers had remained in contact with Mrs B, and that there was no evidence to support the service of notices.
16. The Council also explained it would not normally give information to a third party about the alleged unauthorised works to its property, as this was a matter between its housing department and Miss P. It acknowledged Mrs B’s complaint the noise levels had increased since this work, but said there was no evidence to support this.
17. The Council also denied it had show preferential treatment to Miss P during the failed mediation, and explained it had been working to keep them separate before the meeting to avoid confrontation.
18. Mrs B then submitted an undated stage 2 complaint. She said the problems were not simply noise, but also harassment and intimidation, and that the Council had failed to address this. She said her family was uncomfortable in its home, that officers had made decisions based on their opinions and experience, and not in accordance with Council policies, and accused the Council of discriminating against them. Mrs B also complained Miss P had breached “statutory noise level” but the Council had not used equipment to measure this.
19. The Council replied on 24 March. It said it had used “early intervention tactics”, engaging both parties in mediation in an attempt to resolve the dispute amicably. The Council also highlighted the meetings which had been held with Mrs B. It said there was no evidence of malpractice or that it had discriminated against Mrs B.
20. The Council said it had dealt with the complaints in accordance with its policies, and that it had on three occasions undertaken noise monitoring. It said it had advised Mrs B in February to inform the police about any criminal allegations such as harassment, and to provide an updated log of these to the Council, but it had not received anything since then. It also explained the evidence it had gathered did not meet the threshold to be considered a statutory nuisance.
21. On 4 June, the Council served community protection warnings on Mrs B, her husband, and Miss P. All parties were warned they should avoid contact with each other and not engage in behaviour to annoy or cause a nuisance. The warnings explained a failure to comply could result in the service of a community protection notice, which in turn would lead to a penalty or fine if it were breached.
22. On the same day, Mrs B’s husband submitted a Community Trigger application. The Council approved the application on 17 June. On 19 June, it wrote to confirm the review meeting would be chaired by an officer from Nottinghamshire County Council. It explained it could not allow Mrs B or her husband to attend for confidentiality reasons, but said an officer from a local victim support service could attend to present their views.
23. The review chair wrote to Mrs B on 16 July to explain the outcome of the review. She noted Mrs B’s concern about officer impartiality, and that Miss P may have been given advice on how to ‘catch her out’. The chair explained she had identified a message in the Council’s records, dated 3 June, which had given her cause for concern, although it was not a Council officer who had sent the message, but an officer from the victim support service. The chair said she had recommended the Council take steps to ensure officers dealt properly with the receipt of inappropriate messages.
24. The chair said she had also recommended the Council re-establish a lead officer for the case. However, she said the appropriate policy and procedures had been followed by the police and other agencies involved. The chair said it was a matter of professional judgement to decide what constituted a nuisance or anti-social behaviour, and noted the Council’s policy gave examples to this end, although the policy was due to be reviewed. She recommended the Council consider whether to give further examples of where it would / would not take action.
25. The chair said she had noted there were recordings made by Mrs B which Council officers said they had not yet heard, and which provided potentially valid evidence. She noted the Council had offered to review evidence in correspondence with Mrs B’s MP, and requested she submit the additional recordings as part of this. The chair said she had also asked the Council to review whether the restrictions on voice recordings, in the community protection warnings, should stand.
26. The chair had also recommended the Council update itself on the current situation with the boundary fence and party wall. She understood the agreements which had been reached during the mediation were no longer being monitored, as the relationship had deteriorated since then, but hoped matters might improve to the point where this could be revisited.
27. The chair said the Council would provide a progress update to Mrs B by 14 August, and also explain how she could appeal the outcome of the review if she wished.
28. The Council then wrote to Mrs B on 14 August. It explained it was still waiting for a response from the victim support service about the officer’s inappropriate message. The Council named its new lead officer for the case, and the officer’s duties and role. The Council also listed its expectations of Mrs B as part of the process, which included completing diaries and providing evidence to the Council, agreeing to an anti-social behaviour risk assessment, and consenting to mediation and signing a Good Neighbour Agreement.
29. The Council confirmed it had retrospectively authorised the works Miss P had undertaken to the party wall, and also provided information to clarify Mrs B’s responsibilities with regard to the boundary fence. It also said it would review its anti-social behaviour policy, and consider whether it should make any changes in the light of the Community Trigger review in this case.
30. The Council explained it had taken legal advice and was satisfied the recording restrictions set out in the community protection warnings remained appropriate. It provided an internet link which explained the Community Trigger appeals process.
31. Mrs B referred her complaint to the Ombudsman on 24 August. She complained the Council had not taken action to address Miss P’s behaviour, and that she considered this was due to the actions of one officer in particular, whom Mrs B did not consider impartial. She said she had now developed anxiety as a result of this matter, and believed the Council could have effectively intervened to prevent the situation arising by properly applying its policies.
32. On 4 September, the Council’s new case officer wrote to Mrs B. He summarised the contact he had with Mrs B and her husband during August, which included a visit to their home and an offer to install noise monitoring equipment. The officer said they had turned this offer down, and had also either rejected or not responded to his requests for them to provide diaries, written statements, undergo a risk assessment, or to agree to mediation or sign a Good Neighbour Agreement. The officer said Mrs B and her husband had also not provided copies of CCTV footage or recordings of Miss P, which they had said the Council had failed to collect previously.
33. The officer said, due to the lack of co-operation, he was unable to progress the case and would therefore be stepping it down.

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Legislative background

Statutory nuisances

34. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
35. 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

36. 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.

37. 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.
38. 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.
39. 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.

Abatement notices

40. 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.
41. 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.
42. 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.

Section 82 of the Environmental Protection Act

43. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
44. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82.

Anti-social behaviour

45. Councils and the police can issue Community Protection Notices (CPN) to prevent anti-social behaviour which is having a negative effect on the community's quality of life, and which they decide is unreasonable. CPNs require the behaviour to stop and, where appropriate, require the recipient to take reasonable steps to ensure it is not repeated. Failure to comply is an offence, and may result in a fine or a fixed penalty notice.
46. 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.
47. A council may issue a CPN while it is investigating whether the behaviour is a statutory nuisance. Issue of a CPN does not affect the council’s obligation to serve an abatement notice under Part 3 of the Environmental Protection Act 1990, where the relevant test is met.

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Analysis

48. The Council’s involvement in this matter now spans a number of years, and has generated hundreds of pages of notes and correspondence between the various parties. I have not sought to provide a comprehensive account of this in the background section; nor will I attempt to investigate each of the Council’s actions along the way in forensic detail. This would be impractical.
49. Taking a more general approach, however, I do not consider there is any evidence of fault here. I will explain my reasons for this presently.
50. Before doing so, I will first explain the issues Mrs B pursued with the Council about work to the party wall and boundary fence fall outside my jurisdiction. This is because the Council is the owner of Miss P’s property, and so its work on these elements of the complaint arises from its duties as a social landlord. The Ombudsman has no jurisdiction to investigate the Council when acting as a social landlord, which is instead a matter for the Housing Ombudsman Service. I will therefore make no further reference to them in my consideration.
51. The crux of Mrs B’s complaint is that the Council has failed to take effective action to protect her from what she considers to be Miss P’s anti-social behaviour. She says the Council has not effectively applied its policies and procedures, and in the case of one officer in particular, has not been impartial in its approach to the matter. I do not agree.
52. It is clear there is a deeply entrenched dispute between Mrs B and Miss P. This has triggered a long series of allegations and counter-allegations. As the Council has said, it must consider any complaint it receives; it cannot simply disregard an allegation made by one party on the basis it would likely aggrieve the other party.
53. Although I have not sought to reproduce or summarise a detailed history of the Council’s involvement here, I have read through the significant volume of notes and correspondence the Council has provided me. I see no point where the Council has allowed the matter to drift, or failed to respond to allegations Mrs B has made. It has investigated everything, with numerous visits to the site, and three separate installations of noise monitoring equipment.
54. The Council has explained, on several occasions, it does not consider the evidence these visits and monitoring have produced to justify the service of a noise abatement notice. This is because it has not identified a statutory noise nuisance.
55. I understand Mrs B considers Miss P has breached what she terms the ‘statutory noise level’ on several occasions. Unfortunately, this is a misconception, as there is no such thing as a statutory noise level. Identifying a statutory nuisance is not based on a fixed acceptable noise level, but involves a range of factors, such as timing, duration and intensity. It is a matter of professional judgement for environmental health officers to decide whether a statutory nuisance exists; and the simple fact a noise may annoy a person does not, in isolation, mean it is a statutory nuisance.
56. In this respect, Mrs B’s complaint that officers have used their ‘opinions and experience’ when making decisions is not valid – this is precisely what officers should do when investigating complaints of this nature.
57. The Ombudsman’s role is to review the Council’s adherence to procedure when making decisions. We do not offer a route of appeal against contested Council decisions, and we cannot uphold a complaint simply because a person feels the Council should have made a different decision.
58. It is also not for us to apply our own judgement on matters such as noise nuisance or anti-social behaviour, but instead to ensure the Council has taken proper steps to investigate and given clear reasons for its own decisions. I am entirely satisfied it has done so here.
59. I understand Mrs B feels the Council is biased towards Miss P. However, the Council has issued a community protection warning to Miss P, as well as to Mrs B and her husband, cautioning all parties they may face stricter sanctions if they do not cease their behaviour. I am satisfied the Council has been even-handed in its approach here and has not shown bias to either side.
60. I appreciate Mrs B considers the Council should accept her view that Miss P is the antagonist in their dispute, but as I have said, the Council must entertain all allegations and counter-allegations, regardless of the feelings of the accused party. I would, in fact, criticise the Council if it had simply taken Mrs B’s side in the dispute, given the balance of the evidence here.
61. I can see the Community Trigger review identified a message in the Council’s records, which was indicative of bias. The victim support service officer emailed a Council officer on 3 June, suggesting he contact Miss P to provide support to her (as Mrs B and her husband were receiving support from a different caseworker), and also that Miss P could be given advice on how to ‘catch out’ Mrs B and her husband.
62. I agree this comment was inappropriate. However, the author of this email does not work for the Council, and so I cannot say the Council should take responsibility for it.
63. In responding to the message, the Council officer provided Miss P’s details. She did not engage with the support officer’s suggestion about catching Mrs B and her husband out, although she also did not comment on the appropriateness of this suggestion.
64. The review chair did recommend the Council give guidance to officers on how to respond to such messages. I agree it would have been better if the Council officer had criticised the support officer’s suggestion, and explained it was inappropriate.
65. However, on balance I do not consider this to be a significant point. As I have said, upon reading the whole set of notes and correspondence, I have found no evidence to suggest this Council officer, or any other, was biased in their approach to the dispute. This is reinforced, again, by the fact the Council served formal warnings on all parties.
66. The review identified other steps the Council should take, including appointing a new case officer, and a review of new evidence Mrs B had collected. The Council accepted this recommendation, but it appears Mrs B and her husband have declined to engage further with the Council’s attempts to investigate and mediate the situation between them and Miss P.
67. I appreciate Mrs B may feel further investigation by the Council is unlikely to produce a different outcome. However, I do not consider the Council’s actions so far to be the result of fault – as I have said, I am satisfied it has investigated the matter thoroughly and made balanced decisions. It may well be the Council will maintain its position on further investigation, but this is a decision it is entitled to make.
68. I note also the Council has alerted Mrs B, on several occasions, to her right to take private action against Miss P in the Magistrates’ Court, under section 82 of the Environmental Protection Act, which is good practice.
69. Taking this all together, I consider the Council has approached this matter appropriately. It has investigated thoroughly, and it is entitled to make the decisions it has. There is no evidence of bias and no fault here.

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Final decision

70. I have completed my investigation with a finding of no fault.

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Investigator's decision on behalf of the Ombudsman