Summary: Ms C complained about the Council’s response to her reports of noise and anti-social behaviour and that she suffered unacceptable levels of both for longer than necessary. We have found fault by the Council in the way it dealt with Ms C’s Community Trigger request but consider the agreed actions of an apology, £300 and staff guidance provide a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Ms C, complains the Council’s response to her reports of noise and anti-social behaviour by her neighbours from April 2019 has been inadequate. Ms C says because of the Council’s fault, she has suffered unacceptable levels of noise and anti-social behaviour for longer than necessary which is causing her and her family great distress.
2. The final section of this statement contains my reason(s) for not investigating events before April 2019 or the release of noise monitoring recordings.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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. We cannot question whether an organisation’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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
7. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
8. 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)
9. If we are satisfied with an organisation’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

10. I read the papers provided by Ms C and discussed the complaint with her. I have considered some information from the Council. I have explained my draft decision to Ms C and the Council and considered the comments received before reaching my final decision.

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What I found

Background

Statutory nuisance

11. Under the Environmental Protection Act 1990 councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. 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.

12. 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 undertake site visits.
13. 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.
14. 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.
15. 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.

Anti-social behaviour

16. Councils have a general duty to take action to tackle anti-social behaviour (ASB). ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation. For example, they may approach a complaint:

• as an environmental health issue, where the complaint is about noise or pollution;
• as a planning matter, where the complaint is about an inappropriate use of a building or facility;
• as a licensing matter, where the complaint is about a licensed premises, such as a pub or nightclub;
• as part of their duties as a social landlord, where the alleged perpetrator is a council tenant (although we are unable to investigate the council’s actions as a social landlord); or
• using their powers under the Anti-social Behaviour, Crime and Policing Act 2014.

17. The 2014 Act introduced six new powers for agencies involved in tackling ASB. These are:

• the power to issue community protection notices (CPN);
• the power to make a public spaces protection order (PSPO);
• the power to close premises for a specified period of time;
• a civil injunction (a court order, which can be made upon application by the local authority or other agencies);
• a criminal behaviour order (a court order made following a conviction); and
• the power for the police to disperse people from a specified area.
  Community Protection Notices

18. Councils and the police can issue Community Protection Notices (CPN) to prevent ASB 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 (FPN).
19. 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.
20. 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.

Community Trigger

21. The Anti-social Behaviour, Crime and Policing Act 2014 ALSO introduced a mechanism to review the handling of complaints of ASB. This is commonly known as the ‘Community Trigger’ process.
22. When a person requests a review, relevant bodies (which may include the council, police and others) should decide whether the local threshold has been met. If the threshold has been met, the relevant bodies should undertake the review. They should share information, consider what action has already been taken, decide whether more should be done, and then inform the complainant of the outcome. If they decide to take more action, they should create an action plan. It is for relevant local bodies to agree their review threshold, but the ASB statutory guidance says this should be, at a maximum, that a complainant has made three reports of ASB within six months. We can only consider councils’ actions in an ASB case review. Any contribution made by other relevant bodies, such as the police, is not in our jurisdiction.
23. The Council’s review threshold is three reported incidents of ASB in the previous six months, to a relevant agency which may include the police or housing provider as well as the Council itself.

Key events

24. The Council served a CPN on Ms C’s neighbour in early April 2019 about excessive noise from shouting, swearing, banging and amplified music. The requirements were to keep noise to a reasonable level and time, with no shouting or swearing and amplified music not to be audible outside the property and ensure no waste was left outside.
25. The Council discussed this action with Ms C later in April. Ms C advised that she had been on holiday for several weeks so there had been no impact from noise but stated there had been an argument in the street between her neighbour and another resident. Ms C also raised concerns about overcrowding at the property. The Council advised Ms C that the street argument would not be considered noise nuisance but could be reported to the police as ASB and it would refer the overcrowding issue to the landlord. The Council asked Ms C to telephone if there were further noise issues.
26. The Council closed the case at the end of May as it had not received any further reports of noise. It would have been good practice for the Council to contact Ms C at this point before closing the case to ensure the CPN had had the desired effect as there can be a variety of reasons why a person may stop reporting.
27. Ms C contacted the Council in early July to report further issues with her neighbour. The Council contacted the landlord about tenancy related matters. Ms C explained there was music from time to time although not late at night but also laughing and loud talking into the early hours. Ms C was seeking sound proofing between the properties.
28. The Council installed noise monitoring equipment at Ms C’s property towards the end of July. The Council removed the equipment in mid-August and reviewed the recordings in early September. The Council did not find evidence to warrant further action and advised Ms C of this decision and there was no evidence to support the action Ms C was seeking of sound proofing between the properties.
29. Ms C reported concerns about a dog being left in her neighbour’s garden in mid-October. The Council visited in early November and found there was no sign of a dog in the garden or barking. The Council closed the case in early January 2020 as it received no further reports.
30. Ms C contacted the Council again at the end of May 2020 to say her neighbour’s landlord had not taken any action in response to her reports.
31. The Council confirmed at the beginning of June that it would consider the matter under its ASB powers as it had not identified a statutory noise nuisance. The Council liaised with the police about the issues being reported and sent a reminder to Ms C’s neighbour that the CPN remained in place.

32. The matter was discussed at meetings of the multi-agency Hate and Anti-social Behaviour Action Group (HASBAG) in July, August, September, and December. The Council explained to Ms C that there was a multi-agency approach being taken with her neighbour and it was not able to provide the details of this.
33. Ms C provided diary logs to the Council in early July and raised an issue about previous recordings being lost. The Council confirmed to Ms C that there were no lost recordings. The Council has provided a copy of the noise recordings to the Ombudsman.
34. The Council installed noise monitoring equipment to Ms C’s property during July and reviewed the recordings in early August. The Council found no evidence of a statutory noise nuisance or a breach of the CPN and the noise recorded was considered to be at a reasonable level.
35. Ms C provided further diary logs towards the end of August and in early September. The Council did not consider these provided evidence of noise nuisance or a breach of the CPN and were everyday household noise that could reasonably be expected. The Council advised Ms C of this decision in mid-September.
36. Ms C provided further diary logs at the end of September which the Council considered may provide evidence of ASB. The Council also received a report of ASB about Ms C’s neighbour from another resident.
37. Ms C contacted the Council about social media posts by her neighbour in October which she had reported to the police.
38. The Council installed noise monitoring equipment at Ms C’s property in mid-October. The Council reviewed these recordings and did not identify any unreasonable noise. The Council installed the noise monitoring equipment again at the end of October.
39. Ms C reported further ASB from her neighbour to the Council in early November. The Council visited Ms C in early November to reset the noise monitoring equipment following a power failure. Ms C provided further diary logs at the end of November. The Council reviewed the noise recordings and found no evidence of a statutory noise nuisance but did identify a possible breach of the CPN.
40. The Council served a Fixed Penalty Notice (FPN) for a breach of the CPN to Ms C’s neighbour in mid-December. The Council met with Ms C and offered mediation between the parties which Ms C accepted.
41. Ms C asked the Council about a Community Trigger review in January 2021. The Council says it did not convene a Panel as the matter was already being discussed by the multi-agency HASBAG and its policy was that if there were ongoing multi-agency actions a Trigger Panel would not be convened. The Council has acknowledged this is not in accordance with the Community Trigger process.
42. The Council confirmed in early March that mediation between the parties could not proceed as there was an ongoing police investigation and court case relating to the social media report above. Ms C reported a noticeable reduction in noise.

43. Ms C subsequently provided further diary logs in March and reported soundproofing work completed by the landlord downstairs had not made a difference. Ms C provided an update to the Council about the ongoing court case in April and further diary logs in June and August. The Council confirmed the logs did not provide evidence of statutory noise nuisance and it would not be appropriate to take action over minor incidents of noise that occurred infrequently. The Council subsequently met with Ms C in October and contacted the landlord about waste in her neighbour’s garden. The landlord confirmed details of tenancy action it had taken to the Council in early November.
44. The Council wrote to Ms C in November to confirm she should continue to report loud noise to the Council although it had not identified a statutory nuisance to date. The Council also advised Ms C she should report any issues about ASB or drug related activity to the landlord and police.
45. Ms C’s neighbour left the property in February 2022.

Analysis

46. Based on the information provided, I am satisfied the Council properly responded to most of Ms C’s reports of noise and ASB from her neighbour and took appropriate action. The Council visited Ms C and reviewed the available information about the history of her similar reports to it as well as checking the intelligence available from other agencies. The Council completed several periods of noise monitoring which did not identify a statutory noise nuisance and mostly found the noise would not be considered ASB. When the Council did obtain evidence from its noise monitoring of a breach of the existing CPN it issued a FPN to Ms C’s neighbour. The Council also worked with the landlord and other agencies through multi-agency meetings but was unable to provide details of this work to Ms C.
47. However, I am concerned the Council suggested it did not have a further role to play in responding to Ms C’s reports of ASB in its November 2021 correspondence above. The Council was correct to advise Ms C that reports of criminal activity should be reported to the police but it still had a responsibility to address her reports of ASB albeit in partnership with other agencies. The Council should have assessed whether the ongoing behaviour being reported by Ms C was ASB. If the Council did not consider the behaviour was ASB it should have explained this to Ms C. Alternatively, if the Council considered the behaviour was ASB it should have liaised with the landlord and police as appropriate to address the issues and advised Ms C accordingly. The Council’s apparent failure to do so here is fault.
48. In addition, the Council did not respond properly to Ms C’s request for a Community Trigger review. The Council should have considered if the local threshold had been met and convened a Community Trigger Panel to consider the action taken and, if necessary, agree a future action plan and confirm the outcome to Ms C. This did not happen which is fault.
49. I have considered what injustice this fault may have caused Ms C in the context of this complaint. I note the matter was already being regularly discussed by the HASBAG which is a multi-agency group involving the same agencies that would normally be involved in a Community Trigger review albeit not with the focus of providing an outcome to Ms C.

50. On balance, I am satisfied the faults identified above did not affect the outcome in terms of the actions taken to address the issues being reported but I do consider they caused Ms C some uncertainty about how her reports were being treated and time and trouble in making a complaint.

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Agreed action

51. The Council will:
1. write to Ms C to apologise for wrongly suggesting it had no further role in responding to her reports of ASB and not responding properly to her request for a Community Trigger review within one month of my final decision;
2. pay Ms C £300 to acknowledge the uncertainty and time and trouble the above fault caused within one month of my final decision; and
3. issue guidance to relevant staff who may receive requests for a Community Trigger review to ensure such requests are dealt with in line with the Council’s published policy within two months of my final decision.

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Final decision

52. I have completed my investigation as I have found fault by the Council but consider the agreed action above provides a suitable remedy.

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Parts of the complaint that I did not investigate

53. I have not investigated events before April 2019 as a complaint about events from this period would be caught by the restriction outlined at paragraph 8 above. Ms C first complained to the Ombudsman in September 2020. As the matter was ongoing when Ms C resubmitted her complaint to the Ombudsman in July 2021, I exercised the discretion available to me to investigate events from April 2019 to July 2021.
54. I also have not investigated the matter Ms C had already raised directly with the Information Commissioner about the release of noise monitoring recordings for the reasons set out at paragraphs 5 to 7 above.

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Investigator's decision on behalf of the Ombudsman