Summary: Mr B complains about the way the Council responded to his reports of noise nuisance from his neighbour. We find fault with the Council for failing to investigate Mr B’s complaint. This caused Mr B injustice. The Council agrees actions to remedy the injustice to Mr B.

The complaint

1. Mr B complains about the way the Council responded to his reports of noise nuisance from his neighbour. He also complains about the way the Council handled his complaint and does not feel it answered all his complaint points.
2. Mr B says the Councils failure to properly investigate the noise and take any action has cause him and his family distress. He says it has seriously affected his mental health and wellbeing, and that of his family.

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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. 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

5. I reviewed the information Mr B provided with his complaint. I made enquiries with the Council and considered its response with relevant law and guidance.
6. Mr B and the Council had the opportunity to comment on my draft decision. I carefully considered the comments I received.

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What I found

Law and guidance

Noise nuisance

7. Councils must look into complaints about noise that could be a statutory nuisance (covered by the Environmental Protection Act 1990). The noise complained about might be loud music, barking dogs, noisy neighbours, rowdy pubs or noise from industrial, trade or business premises.
8. For a noise to count as a 'statutory nuisance' it must do one of the following:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
• injure health or be likely to injure health.
9. Generally, the statutory nuisance will need to be witnessed by the Environmental Health Officer and he/she will come to an independent judgement. The process of determining what level of noise constitutes a nuisance can be quite subjective. The level of noise, its length, timing and location may be taken into consideration in deciding whether a nuisance has actually occurred.
10. If an officer decides a statutory nuisance is happening, or will happen in the future, councils must serve an abatement notice. This requires whoever is responsible to stop or restrict the noise. If someone does not comply with an abatement notice they can be prosecuted and fined.
11. Councils can decide to take informal action if the noise complained about is causing a nuisance but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation. Councils should have a policy or procedure to explain what it will do.

Anti-social behaviour (ASB)

12. Section 2 of the Anti-Social Behaviour, Crime and Policing Act 2014 defines anti-social behaviour as

“(a) conduct that has caused, or is likely to cause, harassment, alarm or distress to any person

(b) conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or

(c) conduct capable of causing housing related nuisance or annoyance to any person.”

13. This can include nuisance, rowdy or inconsiderate neighbours
14. On-going anti-social behaviour may need intervention by organisations such as councils, police, health and registered social landlords.

ASB Council duties

15. Section 17 of the Crime and Disorder Act 1998 places a general duty on councils to take action to combat anti-social behaviour.
16. Councils will have a team to respond to and investigate complaints about anti-social behaviour, liaising with the police and other agencies as necessary.
17. The Anti-Social Behaviour, Crime & Policing Act 2014 introduced the community trigger to give victims and communities a say in how local agencies deal with anti-social behaviour.
18. The community trigger is a process that allows members of the community to ask the Community Safety Partnership to review its responses to complaints of anti-social behaviour.

The Council’s policy

19. The Council website explains how the environmental protection team will respond if it receives a report or enquiry about noise or ASB.
20. It says there are anti-social behaviour officers who can provide support and advice. The officers work with partners, including the Police.

What happened

21. In February 2020 Mr B reported issues with his neighbour to the Council. This was passed to the anti-social behaviour (ASB) team. The Council wrote to Mr B and included monitoring forms for him to complete and return.
22. In May 2020 Mr B contacted the Police about the same issues. He asked if the police could liaise with the Council ASB team and gave his reference number.
23. The police asked the Council for an update. It said it had sent the forms but they had not been returned so there was no ongoing action.
24. In May 2020 Mr B told the ASB team he was still completing the monitoring forms and he described the noise and the stress the family were experiencing from the neighbour.
25. In June 2020 Mr B sent the completed monitoring forms for the period 18 March to 31 May 2020. The Council replied. It told Mr B it was discussing the matter with the police and would be in contact to discuss the agreed actions to resolve the issues. On the same day the case recording says the officer would seek advice about recording equipment.
26. There was no further case recording until July 2020 when the case was closed. It said no further action was required because of police intervention. It noted the dispute was still ongoing, but police were investigating.
27. Mr B was unhappy with the Council’s response and complained in September 2020. The Council did not uphold Mr B’s complaint.
28. In October 2020 the Council emailed Mr B with details of the community trigger process. It also said a senior officer would consider whether to revisit the continuing noise issue.
29. In November 2020 the Council wrote to Mr B following a senior officer assessing the case. It said the monitoring forms were examined and although there was a noise issue there were also ASB matters. The Council felt it was appropriate to investigate the noise alongside the ASB. It says the police did investigate the noise issues but closed the case due to lack of evidence.
30. The Council told Mr B if the noise issue continued, he should complete the monitoring forms again because it needed up to date information.
31. Mr B was unhappy with the Council’s response and complained to us.
32. In response to my enquiries the Council said:
• Following discussions with the ASB officer, housing and enforcement manager and police it decided the police would lead. The Council said it would support where required.
• It closed the case because of police involvement and proposed civil action by Mr B.
• It did not provide copies of Mr B’s monitoring forms to the police because they were not requested.
• It did not install monitoring equipment because of the police involvement and COVID-19 restrictions. It did not discuss the use of monitoring equipment with the police.
• There was no written evidence of the assessment of Mr B’s monitoring forms. There was verbal discussion between officers.
33. The Council said it accepts where issues are discussed across agencies it could lead to confusion about which agency is leading and communicating with the customer. It said it will review this element of the process internally and with the police.

My findings

The noise nuisance investigation

34. I find fault with the Council for failing to investigate Mr B’s noise nuisance complaint.
35. The Council says it did not investigate because the police were involved and leading the investigation. There were other ASB and neighbour issues in this case and the police were also involved. However, the Council were best placed to investigate the noise nuisance part of this complaint. The Council has a duty to look into complaints about noise that could be a statutory nuisance. It has the experience, equipment and expertise to do this. Environmental health officers are recognised experts, and their professional judgement is important.
36. I do not understand what the Council thought, or expected, the police could do about the noise nuisance investigation. In June 2020 the police told the Council the noise issue was ongoing and asked for the Council’s thoughts on a “way forward”. The Council did not provide any advice to the police and did not tell the police about Mr B’s monitoring forms. It did not discuss the possibility of monitoring equipment or anything else it could do to support the investigation. The Council says this was because the police did not ask. The Council should take responsibility for its own actions and not wait to be asked for specific information.
37. I asked the Council for evidence of how it considered the information in Mr B’s monitoring forms. It could not provide any evidence. It said the officers “vaguely recall the discussion took place”. This is fault. This is poor administrative practice. The Ombudsman’s principles of good administrative practice (2018) say to be open and accountable Council’s should keep proper and appropriate records. The Council relied on information in its response that is not recorded in its case notes.
38. The Council says it closed the case because of the police involvement and proposed civil action by Mr B. It is clear from the case notes the proposed civil action was in respect of false allegations not the noise nuisance.
39. On 4 June 2020 there is a case note about a phone call with Mr B:

“…noise still constant from next door, advised that I am going to discuss with the police who are now leading on the case and seek advice regarding recording equipment”.

40. The Council told Mr B it would be in touch when it had spoken to the police to “find a suitable solution going forward”.
41. There are no further case notes until 9 July 2020:

“Close- No further action required following police intervention. Disputes still ongoing, but police are investigating”.

42. There is no correspondence between the Council and police between these dates to explain the decision to close the case when the issues were ongoing.
43. In its complaint response the Council told Mr B the case was closed because of police intervention and proposed civil action. It told Mr B this was the correct procedure once police became involved. I asked the Council to provide a copy of the procedure it referred to. The Council said:

“There is no written procedure as such… In cases where there is already police involvement, it is standard practice to discuss this with them and consider who is the most appropriate agency or agencies to take the matter forward”.

44. I find fault with the Council for the way it communicated with Mr B about his noise complaint. Its communication was misleading. It implied it was working with the police and would update Mr B but, it was not investigating the matter and closed the case. It also told Mr B it was following a procedure, but the procedure did not exist.
45. I asked the Council about its decision making in respect of noise monitoring equipment. The Council said it felt the situation did not warrant the use of this equipment because of the police involvement. However, it also said:

“Should the police not have become involved in the complaint noise monitoring equipment may have been considered once the lockdown restrictions have eased”.

46. I find fault with the Council for its decision making about the use of monitoring equipment. It failed to record its decision making at the time. Its retrospective justification does not explain why it did not discuss the possibility of monitoring equipment with the police. The police asked the Council for advice and it failed to provide any. It should have taken professional responsibility for the action it could have taken to support the investigate the complaint.
47. In the senior officers’ case review they disagree with the officers view the noise nuisance was more ASB than statutory nuisance. The senior officer said:

“… in a case like Mr B, he is going to claim that the noise is deliberate, this doesn’t mean that it is and therefore shouldn’t be referred to ASB based on the fact Mr B claims it to be deliberate. It should be investigated as a noise complaint and then if it is deemed deliberate it can be referred”.

48. This suggests the noise issue could have been separated from the other ASB issues and investigated to decide if there was a statutory nuisance. This would not have prevented the police ASB investigation.
49. The Council also delayed telling Mr B about the community trigger review process. Mr B’s situation appears to fit the criteria for the process, and it would have been an opportunity for the issues to be resolved at an earlier stage. By the time the Council told Mr B about this he had already complained to us.

Injustice

50. I cannot say what the outcome of the noise investigation would have been. But the Council’s failure to investigate and its lack of recorded decision-making casts doubt over its decisions. This uncertainty caused Mr B distress and this injustice is ongoing.
51. It also misled Mr B in some of its communication and delayed telling him about his right to request the community trigger review.
52. The Council should investigate the noise issue. It should also make a financial payment to recognise the distress, time and trouble it caused him.

Agreed action

53. Within one month of my final decision the Council should:
• Pay Mr B £450 to recognise the distress, time and trouble it caused him.
• Commence its investigation into the noise nuisance issue. It should ensure it records its decision making properly and appropriately.
• If the Council’s investigation leads to any action the Council should consider a financial remedy payment to Mr B for the period it failed to investigate. It should consider a monthly payment for any loss of amenity. This amount should take into consideration the severity of the loss, circumstances of the complaint and impact on daily life.
54. Within two months of my final decision the Council should:
• Remind relevant staff of the community trigger review process and when to inform a customer of this option.
• Review its policy and procedure of how it works with other agencies in respect of noise nuisance and ASB complaints. It should conduct the review with the fault and learning points of this investigation in mind. It should provide the Ombudsman with evidence of any changes to prevent a recurrence of the fault.
• Remind relevant officers of the importance of proper and appropriate record keeping of decision making.

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Final decision

55. I find fault with the Council causing injustice.

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Investigator's decision on behalf of the Ombudsman