Summary: The Ombudsman found fault on Mr Y’s complaint about the way the Council dealt with his report of homophobic abuse. It failed to ensure these were referred on to the police. The agreed action remedies the injustice caused. There was no fault in the way it dealt with his reports of noise or antisocial behaviour.

The complaint

1. Mr Y complains about the Council’s failure to take effective action against his upstairs neighbours who cause a noise nuisance, act antisocially, and have directed homophobic abuse at him and his partner; as a result, the stress affected his relationship with his partner, their health, and made them fearful to leave their home.

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The Ombudsman’s role and powers

2. 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)
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)

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How I considered this complaint

4. I considered all the information Mr Y sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I could not send a complete copy because some of it contained details of third parties which means it needs to remain confidential. It also means I cannot refer to this information in this draft decision. I sent a copy of my draft decision to Mr Y and the Council. I considered their responses.

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What I found

5. Mr Y and his partner live in their ground floor privately rented flat. Above them lives their neighbour with her adult disabled son. She owns her flat and her partner visits, staying over most days of the week. The main problem Mr Y has with the neighbour is one of noise. He claims she vacuums for hours each day on one spot, runs up and down stairs to annoy him, has the washing machine on a 3-hour cycle from 11pm, allows the dog to bark all hours of the day, and deliberately drops things in the wet room directly above Mr Y’s shower when she knows he is in it.
6. He also claims the neighbour and partner directed homophobic abuse at them with her partner also warning them not to look up at their window when returning home.
7. Despite all his reports and noise monitoring, Mr Y is unhappy the Council has not taken any formal action against the neighbour.
8. In response to my enquiries, the Council confirmed:

• It received a report from the neighbour about Mr Y’s puppy in February 2020. An officer visited and spoke to him who said they also had a noise problem with the neighbour and would send a complaint. He sent the Council a report using an antisocial behaviour (ASB) form, a copy of which I have seen. It referred to problems with the neighbours including noise, behaviour, and homophobic abuse.

The Council claims his complaint about homophobia was referred to 2 senior community connection officers at the ASB Unit. There is no record of what they did in response and neither now work for the Council. It accepts it is unclear what they did.

• In March, the neighbour provided the Council with a completed noise diary.
• The following month, it received a report from Mr Y and his partner about noise from the flat above. It responded enclosing a noise diary for them to complete. A letter from Mr Y’s partner referred to abuse from the neighbour and his ASB report sent in February.

The information Mr Y sent about the neighbour included references to the dog barking, something being dragged, vacuuming, hearing a woman’s voice, loud music, and stomping. Officers advised him to take recordings. It could not provide noise monitoring equipment because of lockdown restrictions. It sent a Community Protection Notice-Written Warning letter to the neighbour.

• In May, an officer told Mr Y he thought the problem was with the insulation between the 2 properties.
• The Council wrote to Mr Y the following month explaining there were insulation issues which need looking at further and asked for details of his landlord.
• In July, Mr Y sent complaints to the Council which replied the same month under both stages of its complaints procedure. In one complaint form he again referred to homophobic abuse. The Council says this was when Mr Y first mentioned homophobic abuse and officers advised him to contact the police. In response to my draft decision, the Council sent me a copy of this advice.

A record of a telephone conversation between the Council and the landlord confirmed insulation problems between the properties. The Council also spoke to the neighbour and then wrote to Mr Y advising it would close the case because this was a problem to do with insulation.

• In August, his diary records showed noise from: doors slamming just before midnight and a bin dragged; stomping; slamming; the washing machine; furniture dragged across floor.

Analysis of the noise monitoring recordings created the same month noted; voices whispering and a sneeze; voices having a conversation; a vehicle heard leaving; muffled banging; muffled footsteps; a distant answer phone; a dog whimpering; muffled vacuuming; noise like a blender; rattling of cutlery; distant music; laughter from TV programme; male voices; ruffling of paper; voices talking about mortgages; a loud thud. Mr Y also reported the neighbour for blocking an external fire exit to the rear of the property.

• In September, the Council did further noise monitoring. Having listened to the recordings, the Council told Mr Y the noises were muffled, sounded like vacuuming and a washing machine, as well as footsteps. The recordings were made at times which were considered reasonable. This meant they were not statutory nuisances. It again told him the likely problem was due to poor insulation between the properties. The Council wrote to Mr Y saying it had closed his case.

9. The Council also explained Mr Y initially reported a problem using an ASB form rather than a noise form. It managed noise complaints differently to how it does now. Had he used the correct form, it would automatically create a record on the computer system used by the Public Protection Service.
10. As he used the ASB form, it went to the Community Connections department of the Council instead. ASB cases are triaged and logged. When a crime is committed it is referred to the police. Homophobia is not an option on the ASB reporting part of its website because of its seriousness which means they are recorded differently. They are recorded as a hate crime which are referred directly to the police. The Council’s website has a section about reporting a hate incident. If the report is about noise, it is referred to the Public Protection Service.
11. Since lockdown, and an increase in noise reports, the Council suspended visits until July, restricted access to officers to the telephone, and gave advice about using mobile phones to record noise. Complainants are now also asked to keep a log diary before making a report to the Council.
12. The Council confirmed it does not have a published policy for noise nuisance. Its website has an Enforcement Policy for the Public Protection Service. This states enforcement action is proportionate to the risks involved and sanctions applied are meaningful. When deciding what enforcement action to take, it will consider the aim of changing the behaviour of the offender, consider the most appropriate sanction, and aims to deter non-compliance. Where there is ASB, the Council will liaise with its ASB Unit if there is persistent targeting of an individual.
13. Its website defines ASB as behaviour causing harassment, alarm or distress to a member, or members, of the public. Reports of ASB are to the police or through an online form for the ASB Unit. Its website explained it can act against the offender, reducing the likelihood of further ASB.
14. The Council confirmed it investigated his report of the neighbour blocking the fire exit and asked them to move the sofa. It took no formal action as it did not cause a nuisance. At the time, it could not provide a bulky service waste collection for the neighbour.

Analysis

15. I make the following findings on this complaint:
1. Most of the reports made by Mr Y and his partner were about noise nuisance. Apart from 2 references to homophobic abuse, all the reports and recording were about noise from the flat above them.
2. There is no evidence to show what the Council did in response to the first report which included reference to homophobic abuse, apart from referring it to the ASB Unit. There is nothing to show he was contacted about this for further details or signposted to the police for example or that the Council referred the report to the police for investigation. Nor is there evidence this was referred to the Public Protection Service to deal with the noise report. This is fault.
3. In April, Mr Y’s partner contacted the Council and referred to the initial report made and mentioned abuse. This should have alerted the Council to his initial report which it failed to action. This was another missed opportunity to respond to the report of homophobic abuse. This is fault.
4. I consider the fault identified caused Mr Y an injustice. He was caused some distress (frustration, inconvenience, and lost opportunity) as a result.
5. I found no fault in the way the Council dealt with his reports about noise nuisance from April 2020. It sent the neighbour a warning letter and sent Mr Y diary logs to complete. It considered his evidence, including his recordings, and spoke to his landlord. It also attempted to resolve the situation informally.
6. I also note the Council told him early on that in the view of officers, this was not a statutory nuisance but an issue with poor insulation between the properties. The entries in the logs and the notes from the noise monitoring recordings tend to support this view. This is because they refer to what could be described as normal daily living noises. Had the Council taken court action, it is likely the court might have taken the same view and concluded the problem was with the insulation, not the neighbour causing a statutory nuisance.
7. Likewise, the antisocial behaviour Mr Y reported as directed against them, such as the neighbour deliberately stomping up and down stairs, for example, could also be explained in terms of poor insulation.

Agreed action

16. I considered our guidance on remedies. I also took account of the fact Mr Y could also reported his neighbour directly to the police for homophobic abuse and was aware of this as an option from the Council’s email sent in July 2019.
17. The Council agreed, within 4 weeks of the final decision on this complaint, to do the following:
1. Send a written apology to Mr Y about its failure to properly deal with his report of homophobic abuse from the neighbour; and
2. Remind relevant officers of the need to carefully check reports for allegations of noise nuisance and homophobic abuse and ensure they are actioned.

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Final decision

18. The Ombudsman found fault on part of Mr Y’s complaint against the Council. The injustice caused is remedied by the agreed action. There was no fault on his remaining complaints.

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Investigator's decision on behalf of the Ombudsman