Summary: The Council was at fault because it served an invalid abatement notice on the complainant’s neighbours, meaning its attempt to prosecute them then failed. The Council has already offered a remedy for the injustice this caused, but has agreed to increase this remedy at our recommendation. The Council was also at fault for its poor complaint handling, but it has already offered an adequate remedy for this. We find no fault in other elements of the complaint.

The complaint

1. I will refer to the complainant as Mr J.
2. Mr J complains about the action the Council has taken to tackle anti-social behaviour (ASB) by the residents of a neighbouring property. In particular, he says the Council:

• served a noise abatement notice on the neighbours with the wrong personal details, invalidating it and preventing the Council from taking enforcement action;
• was slow to take action against the neighbours, failing to take account of evidence submitted by Mr J and other local residents;
• failed to implement actions agreed during a meeting with Mr J in March 2020;
• has been generally poor in its communications with him; and
• did not respond to his complaints on time.

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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 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. 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)

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How I considered this complaint

6. I reviewed a chronology of the Council’s actions, and selected pieces of correspondence between Mr J and the Council, including his complaints and the response.
7. I also shared a draft copy of this decision with each party for their comments.

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What I found

8. Mr J’s home neighbours a rental property. Mr J says he has suffered consistent noise and ASB problems from a series of tenants of this property for more than a decade, and that the Council has been involved since 2013.
9. The law says a person should approach the Ombudsman within 12 months of becoming aware of an issue they wish to complain about. We have the power to disapply this restriction, but only where we are satisfied there are good reasons for the delay in approaching us, and where we consider we can still undertake a robust and meaningful investigation.
10. Mr J complained to the Ombudsman in October 2020, and so any matter which occurred before October 2019 is late. He has not provided a reason for approaching us late. And, especially given his complaint refers to previous neighbours who have long since moved on, I do not consider an investigation by us is now likely to provide a meaningful outcome.
11. For this reason, I will not disapply the 12mth time limit here, and so I will not formally investigate or make findings on anything which happened before October 2019; although I will refer to earlier events for the contextual purposes, where necessary.
12. The following chronology is only intended to provide a basic overview of the key events relevant to this complaint. It does not describe everything which happened.
13. In January 2019, Mr J complained to the Council about the new tenants of the neighbouring house. He began compiling noise diaries, which described shouting, DIY and the slamming of doors, amongst other things, throughout the day and night. Mr J periodically submitted these diaries to the Council.
14. In February the Council installed noise monitoring equipment at Mr J’s property. It reviewed the evidence from this and decided the noise was not a statutory nuisance. After further contact from Mr J, the Council installed the equipment again in April.
15. After reviewing the new recordings, the Council agreed the neighbours were causing a statutory nuisance by playing loud music. In May, the Council served a noise abatement notice on them, obtaining the personal details for the notice from council tax records. The notice required the neighbours to avoid playing loud music, but the Council told Mr J it did not agree the door slamming was a statutory nuisance.
16. Within a few days Mr J reported further noise nuisance. The Council installed noise monitoring equipment again to gather further evidence. Mr J also requested a Community Trigger ASB case review.
17. In June, the Council assessed the latest noise recordings and agreed the neighbours had breached the abatement notice. It invited them to attend a formal interview under the Police and Criminal Evidence (PACE) Act 1984, but the neighbours did not respond to this request.
18. The Council also provided its response to the Community Trigger. It said it considered the responses to Mr J’s report had been proportionate and appropriate. The Council upheld this upon appeal by Mr J.
19. Over the next few months Mr J continued to submit new diaries to the Council, while it considered whether to prosecute the neighbours. It submitted the case to its legal services in October.
20. Mr J continued to correspond with the Council and provide updated diaries. In January 2020, he told the Council he wanted to present his further evidence to the court when it heard the case.
21. Later in January Mr J asked the Council to consider using its powers to close the property, given the history of problematic tenants. He also complained again about the Council’s decision to focus on loud music, and exclude other noise problems from the abatement notice. The Council offered to carry out further noise monitoring if Mr J wished to pursue this issue.
22. In February, the Council identified that the council tax records for the property were out-of-date when it had served the abatement notice. This meant it had served the notice in the wrong names, thus invalidating it, and that the Council could no longer proceed with the prosecution.
23. Mr J raised a formal complaint against the Council on 24 February. The Council replied on the same day to acknowledge its fault, and to confirm it had logged his complaint.
24. On 17 March, the Council’s head of service for environmental health (to whom I will refer as Officer M) met Mr J to discuss his complaint. Officer M explained the steps the Council was taking to avoid a repeat of its fault. At Mr J’s request, Officer M agreed the Council would contact the landlord of the neighbouring property immediately upon the receipt of further noise complaints. He explained that, in order to proceed with the investigation against the current neighbours, the Council would need to carry out yet more noise monitoring.
25. Mr J emailed the Council several times over the following months to chase a response to his complaint. On 19 June, Officer M replied. He explained the Council had been forced to refocus its resources because of the COVID-19 pandemic. He acknowledged he had told Mr J the Council would need to install noise monitoring equipment at his property again, but because of lockdown restrictions this had not been possible.
26. Officer M also commented that Mr J had sought the eviction of the neighbouring tenants, but said the Government had temporarily prohibited evictions because of the pandemic. However, Officer M said he was now aware new tenants had moved into the property anyway.
27. On 13 October, Mr J submitted two complaints to the Ombudsman. He first complained about the Council’s failure to respond to his complaints, and second, listed his substantive complaints about the Council’s handling of the ASB. We combined Mr J’s complaints into one, and referred it back to the Council as premature.
28. The Council provided a substantive response to Mr J’s complaint on 13 February 2021.
29. The Council agreed it was unacceptable it had served the abatement notice in the wrong name. It said Officer M had discussed with Mr J the changes it had made to ensure this error was not repeated. The Council noted Mr J was frustrated he had been required to continue compiling noise diaries, but said this was its normal practice to ensure the evidence available was up-to-date.
30. However, it acknowledged that the reason it was necessary for Mr J to continue making diaries in this case was because of the error with the abatement notice. It accepted this had caused Mr J frustration, and offered him a remedy of £400, to reflect the four-month period of uncertainty it had created (between the identification of the error in February 2020, and the confirmation there were new tenants in June).
31. The Council explained it believed Mr J had been satisfied with the outcome of the meeting with Officer M in March 2020, and so was not aware he was still expecting a written response to his complaint. It apologised for this misunderstanding. The Council said Officer M had been unable to give a timely response to Mr J’s emails following the meeting because of the impact of the pandemic.
32. The Council noted Mr J had also complained Officer M had not implemented what had been agreed during their meeting, such as making immediate contact with the neighbours’ landlord if any further problems arose. Mr J had also complained the Council had failed to “develop a full and comprehensive plan” to resolve the long-standing ASB problems with the property.
33. The Council reiterated the impact of the pandemic had meant it could not investigate noise problems as it normally would. This meant, amongst other things, that officers could not enter complainants’ properties to install noise monitoring equipment.
34. The Council acknowledged some residents had made their own recordings, but said explained it could not rely on recordings from uncalibrated equipment to establish a statutory nuisance. It did not agree it had failed to act upon residents’ evidence, but said there was a process the Council must follow, and because of the error with the abatement notice it had had to restart this from the beginning. This included notifying the neighbours of the complaints which had been made against them, and giving them the opportunity to address the problems, while the Council gathered evidence.
35. The Council said that, after his meeting with Mr J, Officer M had liaised with officers in the Council’s community safety team, and also the police, before writing to the neighbours’ landlord to inform them of the complaints. It said the community safety team had been part of the ASB case review in June 2019, where it had been decided the Council’s pollution control unit would lead on the case. The review had also concluded it was not appropriate for the Council to use its powers to close the property.
36. The Council noted again the tenants had then left the property shortly after Officer M had written to the landlord, and said no noise complaints had been made against the new tenant. The Council acknowledged there had historically been a high turnover of tenants at the property, and understood Mr J’s concerns another new tenant might move in and begin causing problems. However, the Council could not take enforcement action against something which might happen in the future.
37. The Council reiterated its offer of £400 to reflect Mr J’s frustration over the error with the abatement notice. It also offered a further £150 to reflect the confusion and delays with its response to his complaint. It said the matter had now completed its complaints process, and referred Mr J back to the Ombudsman.

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Legislative background

Anti-social behaviour

38. Councils have a general duty to take action to tackle anti-social behaviour (ASB). But 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.

39. 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.

Statutory nuisances

40. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
41. 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

42. 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.

43. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits.
44. 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.

Abatement notices

45. 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.
46. 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.
47. 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.

Closure notices and orders

48. The 2014 Act gives local authorities and the police the power to issue a closure notice against a particular premises, including residential properties, where there is reason to believe it will be the source of ASB at a particular date and time – for example, where information suggests a large party has been planned. The maximum duration of such a notice is 48 hours, although this can be extended by a further 24 hours under certain circumstances.
49. Where a closure notice has been served, the local authority or police can apply to the magistrates’ court for a closure order. A closure order can require a premises to remain closed for up to three months.

Community Trigger

50. The Anti-social Behaviour, Crime and Policing Act 2014 introduced a mechanism to review the handling of complaints of anti-social behaviour (ASB). This is commonly known as the ‘Community Trigger’ process. 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.
51. 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

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Analysis

52. There are several different aspects to Mr J’s complaint. For the sake of clarity, I will address each separately and in turn.

The Council’s service of an invalid noise abatement notice

53. Having reviewed the evidence it had gathered through noise monitoring, and Mr J’s diaries, the Council decided the neighbours were causing a statutory nuisance through playing loud music. It therefore served an abatement notice, requiring this to cease.
54. After the neighbours continued to create the nuisance, the Council then decided to prosecute them. It was only just before the court was due to hear the case that the Council realised it had served the abatement notice in the name of previous tenants. This meant it was not valid, and so the prosecution could not proceed.
55. I should note at this point that, although the abatement notice itself dates from May 2019 (and therefore falls outside the time period I am investigating), Mr J was not aware of the error with the notice until February 2020. As the Ombudsman’s 12mth permitted period runs from where a complainant first “had notice” of the issue they wish to complain about, I consider this element of Mr J’s complaint to be in time.
56. As the Council has accepted, the error in the abatement notice was a significant fault. It also appears to have been entirely avoidable. It is not uncommon for tenants to move in and out of rental properties without notifying the local authority for council tax purposes, and so I would expect officers to have realised the danger of relying solely on council tax records for this information.
57. The Council has also recognised the injustice this has caused to Mr J, and has offered him a remedy of £400. As I understand the Council’s comments, this is to reflect the four months of ‘uncertainty’ caused by the Council’s error, at a tariff of £100 per month.
58. While it is positive the Council has offered a remedy without prompting by the Ombudsman, I am not convinced the injustice to Mr J is a matter of ‘uncertainty’. We generally apply this principle to situations where a complainant has missed out on an opportunity because of a council fault, but where we cannot say what the outcome would otherwise have been – for example, where they have not been informed of their right to appeal a particular decision.
59. In this case, the outcome of the prosecution was out of the hands of either Mr J or the Council. And, even if it had been successful, this still does not mean the neighbours would then have immediately stopped creating a nuisance.
60. Rather, I consider the substantive injustice to Mr J here is the distress he suffered at seeing the prosecution case collapse, after such a length of time, and especially over such an elementary mistake.
61. Mr J has also described the antagonising effects of the ongoing ASB on his health. I cannot objectively confirm this is the case. But, even without this, I consider the Council’s offer of £400 to be inadequate for the level of frustration he has endured here.
62. The Ombudsman’s Guidance on Remedies says:

“A remedy payment for distress is often a moderate sum of between £100 and £300. In cases where the distress was severe or prolonged, up to £1,000 may be justified.”

63. Taking everything here together, I consider a remedy of £600 is more appropriate for Mr J’s distress at the Council’s fault. I make a recommendation to this effect.
64. Separately, I note the Council says it has taken steps to ensure it does not repeat this error in future cases; but I have not seen any description of the remedial actions the Council has taken. I therefore consider the Council should provide the Ombudsman with a summary of this. I make a recommendation to this effect also.
65. I find fault in this element of Mr J’s complaint.

The Council was slow to take action and did not consider the evidence submitted by Mr J and other residents

66. I can see from the Council’s records that, from the point where Mr J first began reporting problems with the neighbours, several months passed before the Council served the abatement notice; and that several more months passed while the Council considered whether the neighbours had breached the notice, and whether it should prosecute them.
67. These events pre-date October 2019, and so I cannot investigate them. I should say, however, in my experience this does not appear a particularly unusual length of time for this type of investigation, which unfortunately can often be drawn-out.
68. I understand Mr J is dissatisfied the Council returned to the beginning of the investigation process, after the error in the abatement notice came to light. I appreciate why he considers the Council could simply have relied on the evidence he and other residents had provided in the meantime, rather than starting the evidence-gathering process over again.
69. But the Council has explained that the failure to properly identify the neighbours effectively invalidated all its work to that point. It has also explained why it could not rely on recordings made personally by local residents, because they do not have access to the appropriate equipment to establish a statutory nuisance.
70. The Ombudsman’s role is to review how councils have made decisions. If a council has followed the correct procedure, considered all relevant information, and given clear and cogent reasons for its decision, we generally cannot criticise it. The Ombudsman cannot make operational or policy decisions on councils’ behalf, and we cannot uphold a complaint simply because a person disagrees with what a council has done.
71. So it is, ultimately, for the Council to decide what weight to put on the evidence it has in any particular case. It has explained why it needed to continue gathering evidence in this case, and why it could not rely on the evidence submitted by neighbours. These are matters of professional judgement in which I cannot intervene.
72. Of course, the requirement to begin the process again only came about because of the Council’s fault with the abatement notice in this instance, as it has acknowledged. This serves to reinforce the injustice here to Mr J.
73. But, while the Council’s decision was the consequence of its fault, I cannot say the decision itself was wrong.
74. Separately, Mr J also complains the Council has not drawn up a “full and comprehensive plan” to resolve the ASB he has reported from a series of problem tenants at the neighbouring property.
75. Again, I acknowledge Mr J’s point. But I am unable to see what long-term measures the Council could reasonably take here. The property in question is privately-owned and let out. The Council has no power to require the landlord to vet or evict tenants, regardless of what problems they may cause.
76. While the Council does can take enforcement action against those committing ASB – for example, by serving an abatement notice or CPN – these powers are reactive, not proactive.
77. I note Mr J has commented on the Council’s power to issue a closure notice. However, closure notices only apply for a maximum of 48-72 hours, and are designed to tackle specific incidents of ASB and disorder, rather than ongoing problems of the type Mr J has reported.
78. I appreciate the Council also has the power to refer the matter to the magistrates’ court, for it to consider issuing a longer-term closure order. But the Council has explained it does not consider this power appropriate under these circumstances. I note from the Council’s record the police took a similar view.
79. Again, these are matters of professional judgement for the Council to make. I am satisfied the Council has had a mind to the powers it has here, and I cannot find fault simply because it has concluded it should not use them.
80. I find no fault in this element of Mr J’s complaint.

The Council failed to implement actions agreed during the meeting in March 2020

81. I have not seen any detailed notes or minutes of this meeting, and so I cannot objectively confirm what Mr J and Officer M agreed. However, from the comments in Mr J’s subsequent correspondence with the Council, it appears this was:

• to write to the neighbours’ landlord as soon as any new problem was reported;
• to reinstall noise monitoring equipment at Mr J’s house; and
• for the Council to review its processes to ensure it did not repeat the error with the abatement notice.

82. The Council’s records show it wrote to the neighbours’ landlord on 26 February and 4 April, both before and after Officer M’s meeting with Mr J. I am satisfied it implemented this agreed action.
83. The Council has confirmed it did not return to install noise monitoring equipment at Mr J’s house after the meeting, but it has explained this was because it suspended all home visits by officers in response to the introduction of lockdown restrictions.
84. This is, of course, extremely unfortunate; but many local authorities made a similar decision at that time, and I cannot say this was fault by the Council. It would have been better if the Council had at least notified Mr J of this change in policy, but given the sudden and urgent shift in priorities it faced, I can appreciate why it neglected to do so. I consider this was a shortcoming, but under the circumstances I do not consider it fault.
85. As noted, I have not yet seen any evidence of the remedial steps the Council took to prevent a recurrence of its error with the abatement notice. But as I have made a finding on this issue elsewhere in my decision statement I will not duplicate that here.
86. I find no fault in this element of Mr J’s complaint.

The Council has generally been poor in its communications with Mr J

87. There has been a very significant volume of correspondence between the Council and Mr J over the course of the events in this complaint. I cannot practically review each piece to ensure Mr J received a timely and meaningful response.
88. I accept the Council may not have always responded quickly to Mr J; and in fact, I note Officer M conceded he had not responded to several emails Mr J sent after their meeting, although he explained this was because of the impact of lockdown and the sudden pressures faced by the Council.
89. But either way, on general principle we do not consider it fault, simply because a council has not always responded quickly to a complainant’s contacts. Council officers will usually have a range of cases and other work to manage at any one time, and we recognise they may not always be available to deal with a particular complainant in a timely way. This is especially so when a complaint relates to an ongoing matter, which requires careful investigation and cannot be resolved quickly.
90. Looking at the overall picture here, I am not persuaded there is any compelling evidence of a generally poor level of communication by the Council with Mr J (notwithstanding Officer M’s comment, which I have quoted).
91. I find no fault in this element of Mr J’s complaint.

The Council did not respond to Mr J’s complaints on time

92. Mr J first logged a formal complaint with the Council on 24 February 2020, after its error with the abatement notice came to light. He chased the Council after he did not receive a written response to his complaint, and then submitted a second complaint to the Council on 3 August.
93. After still receiving no response, he approached the Ombudsman in October. We referred the matter back to the Council, which eventually responded in writing to Mr J’s complaint in February 2021.
94. The Council has explained it considered Mr J’s initial complaint was resolved through his meeting with Officer M on 17 March 2020, and did not realise he was expecting a further written response.
95. In the narrow sense, I do not consider it unreasonable for the Council to consider a face-to-face meeting to be a substitute for a written response, provided the complainant is satisfied with its outcome (which the Council said it believed Mr J was). I would add that councils would not generally offer a complainant a meeting with the relevant head of service in response to their complaint, and so it is positive the Council did so in this case.
96. But it should have been clear after Mr J’s follow-up correspondence, and especially his second complaint, that he had been expecting a written response as well. And, even after Mr J approached the Ombudsman, the Council still took a further four months to provide a written response.
97. I acknowledge, again, the impact of the COVID-19 pandemic on the Council’s ability to provide timely responses to Mr J. In particular, it is not difficult to understand why his initial follow-up correspondence in April went unanswered.
98. But I am not convinced the pandemic can reasonably explain why it eventually took the Council a full year to provide a written response, especially when it should have been obvious by October (at the latest) one was required. I find fault in this respect; and I consider this fault has caused Mr J an injustice, because he was put to time and trouble pursuing the Council for a response.
99. However, I note the Council has offered Mr J £150 as a remedy for this. This is generally in accordance with the Ombudsman’s guidance for a remedy for time and trouble, and so I will not make any further recommendation here.
100. I find fault in this element of Mr J’s complaint.

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Conclusions

101. I find fault by the Council because of the error it made in the abatement notice. Although it has already offered a remedy for this, I consider the Council should increase this offer. The Council should also explain to the Ombudsman what changes it has made to its procedures to prevent a recurrence.
102. I cannot make a finding on Mr J’s complaint the Council was slow to take action against the neighbours, because this element of his complaint is late. I do not find fault that the Council decided it must begin the evidence-gathering process again.
103. I find no fault in Mr J’s complaint about the Council’s failure to implement the actions agreed in March 2020. Although it did not install noise monitoring equipment at his home again, this was because of circumstances beyond the Council’s control.
104. I find no fault in Mr J’s complaint the Council’s communication with him has been generally poor.
105. I find fault because of the delay in the Council’s response to Mr J’s complaint, but I consider the Council’s offer of a remedy for this is adequate to address the injustice to him.

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Agreed action

106. Within one month of the date of my final decision, the Council has agreed to:

• increase the remedy it has offered Mr J to £600, for the distress he suffered at the Council’s fault with the abatement notice (for the avoidance of doubt, this figure does not include the separate £150 the Council should continue to offer Mr J for his time and trouble pursuing his complaint);
• provide the Ombudsman with a summary of the changes it has made to its processes, to prevent a recurrence of the fault in this case.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman