Decision : Upheld
Decision date : 07 Oct 2021
The Ombudsman's final decision:
Summary: Mr X complained the Council failed to take appropriate action against his neighbours when he complained of anti-social behaviour and noise. The Council was not at fault for deciding to take no further action in relation to Mr X’s complaints. It was at fault for failing to signpost him to the Community Trigger. The Council agreed to write to Mr X and apologise for the uncertainty this caused and appropriately signpost him to the Community Trigger process. We do not have jurisdiction to consider the Council’s actions in relation to its handling of alleged tenancy breaches.
- Mr X complained the Council failed to properly investigate his complaints of anti-social behaviour (ASB) and breaches of tenancy against his neighbours going back more than 20 years. Mr X said he continues to suffer from ASB and noise which is causing him ongoing distress, anxiety and time and trouble. Mr X wants the Council to evict his neighbours from their property.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
- Mr X complained to us in December 2020, therefore his complaints about events prior to mid-2019 are late and I do not see a good reason to consider those complaints now. I have therefore investigated how the Council responded to his complaints of ASB and noise between July 2019 and December 2020.
- We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
- We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
- Most of Mr X’s complaints about ASB are directed to the Council’s Landlord Services ASB team and refer to various breaches of tenancy and his wish for the Council to evict his neighbours. The law does not allow private homeowners to complain to the Housing Ombudsman about tenancy management issues. Neither, as I explained in paragraph 5, does the law allow us to consider such matters. This means I cannot look at what, if any action, the Council or its Landlord Services Team took in relation to Mr X’s neighbour’s tenancy. I can only consider the actions and decisions the Council took in relation to how it investigated and considered its powers in response to Mr X’s complaints of ASB and noise using its general duties.
- 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)
How I considered this complaint
- I spoke to Mr X about his complaint and considered the information he provided.
- I considered the Council’s response to my enquiry letter.
- I considered the relevant law and guidance.
- Mr X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before I make a final decision.
What I found
- Councils have a duty to act to combat anti-social behaviour. The Anti-Social Behaviour, Crime and Policing Act 2014 gave councils new powers to address anti-social behaviour. These include civil injunctions and community protection notices.
- Section 2 of the Anti-Social Behaviour, Crime and Policing Act 2014 defines anti-social behaviour as
- conduct that has caused, or is likely to cause, harassment, alarm or distress to any person;
- conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or
- conduct capable of causing housing related nuisance or annoyance to any person.
- The 2014 Act also provides a mechanism to review the handling of complaints about ASB. This is known as the ‘Community Trigger’ process. When someone requests a review, relevant bodies (which include the council, police and other agencies) 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 further 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.
- The Council’s website states victims can use the Community Trigger if:
- They have complained to the Council, Police or Registered Housing Provider about three separate incidents of ASB in the last six months.
- If three individuals in the local community have complained separately to the Council, Police or Registered Housing Provider in the last six months about the same incident of ASB.
- If they have been a victim of a single hate crime or incident in the last six months.
The Ombudsman’s Principles of good administrative practice
- We use our ‘Principles of good administrative practice’ guidance as a benchmark for the standards we expect when we investigate the actions of local authorities. One of our principles is titled ‘being open and accountable’. We expect Council’s to be open and clear about policies and procedures and ensuring information, and any advice provided, is clear, accurate and complete.
Statutory noise nuisance
- The Environmental Protection Act 1990 (EPA) places a duty on the Council to investigate any complaints of ‘statutory nuisance’. Statutory nuisance is a term commonly applied to the impact of noise from a property. For a noise to amount to a statutory nuisance it must do one of the following:
- Unreasonably and substantially interfere with the use or enjoyment of a home or other property.
- Injure health or be likely to injure health.
- Mr X lives in and owns a property. His next-door neighbours and other properties in the surrounding area are owned by the Council which it rents out to tenants. Mr X said he has been affected by ASB from his neighbours for over 20 years. Mr X said he has repeatedly complained to the Council’s Landlord Services Team that his neighbours have breached their tenancy agreements, but problems continue.
- The Housing ASB Team (part of Landlord Services) generally deal with Mr X’s concerns and complaints. Mr X has a single point of contact within the Housing ASB Team (officer 1) who corresponds directly with him about his concerns and manages his cases.
- In July 2019 Mr X reported to the Council that his neighbour had assaulted him. Records show Officer 1 investigated the incident and considered its legal options. The Council said Officer 1 discussed obtaining an injunction however Mr X wanted historic incidents included in his statement. The Council said after investigating further it established the incident occurred up the road from Mr X’s address and his neighbour was not present. It said the incident involved Mr X’s neighbour’s son, did not occur at Mr X’s neighbours address and the neighbour was not present. It therefore decide it was not proportionate to take legal action against his neighbour.
- In April 2020 Mr X complained to Officer 1 about noise and nuisance from his neighbour’s property. Mr X said his neighbours were playing loud music, swearing and letting dogs bark. Mr X also said his neighbours were having bonfires in the garden every day. Mr X said he needed to keep all the windows shut because of this and it was affecting his breathing.
- Records show the Officer 1 liaised with the Council’s Environmental Health (EH) team which deal with general reports of noise and ASB and asked it for advice on how to deal with Mr X’s concerns. Officer 1 explained that due to the COVID-19 pandemic it could not install noise monitoring equipment at his home. Officer 1 suggested Mr X consider using a noise monitoring app on his mobile phone. However, Mr X said he did not own a smart phone so that was not an option. Officer 1 acknowledged Mr X did not own a smart phone and suggested he keep filling out diary sheets and they would add him to the waiting list for noise monitoring equipment. Records show Officer 1 called Mr X’s neighbour to give them advice.
- Mr X made further complaints of a similar nature in May 2020. Officer 1 was on annual leave therefore another ASB officer, Officer 2 responded to him. Officer 2 suggested Mr X use the noise monitoring app. As Mr X had reported further incidents, the Landlord Services ASB team issued Mr X’s neighbour with a written warning. The Council offered to install noise monitoring equipment at Mr X’s home in October 2020, however he did not respond to the offer. Records show Mr X indicated to the Council that ‘some evidence may be provided’. However, there is no evidence either Mr X provided further evidence or the Council requested it. The EH team therefore were unable to determine whether there was a statutory nuisance.
- At the end of April 2020 Mr X reported his his neighbour was persistently staring at him. He perceived this to be a racist/hate incident. Records show that Mr X did not want the Council to take immediate action and stated the report was for information purposes only. The Council referred Mr X to ‘Victim First’, a local helpline, which he declined. In line with its hate crime procedure the Council left the case open for six months before closing it as Mr X made no further reports.
- In June 2020 Mr X reported a further incident which he perceived to be a hate incident. Mr X said his neighbour had parked their vehicle across his drive on purpose. Records show Mr X provided no evidence to support this report and made no further contact about it following his initial report. The Landlord Services ASB team referred the matter to the Community Safety Team.
- In August 2020 Mr X reported that his neighbour had shouted at him about a hedge which overhung into another garden. Mr X said the neighbour was indirectly shouting about the overgrown hedge. Officer 1 decided the incident was not serious enough to warrant further action. Mr X did not make any further reports related to this so Officer 1 closed the case and did not take any further action.
- Mr X said he had sent the Council video clips and images of ASB and rubbish strewn around his garden which he said was from his neighbour. The Council said it considered this information. It said it could not establish any ASB from the video clips and the pictures of the rubbish was not a public health issue.
- Mr X complained to the Council about its handling of his reports of ASB and noise. The Council responded at stage 1 of its complaint’s procedure. The Council said it had dealt with Mr X’s concerns in line with its procedures. It said there was insufficient evidence to take further action in all Mr X’s cases.
- Mr X remained unhappy and escalated his complaint to stage 2. He wanted the Council to consider all the complaints he had made against his neighbour going back almost 20 years. Mr X said he was dissatisfied with how the Council had dealt with continuous tenancy breaches.
- The Council responded at stage 2. It said it had only reviewed Mr X’s case for the last 12 months and would not go back prior to that. The Council said it remained satisfied it had responded to Mr X’s concerns of ASB and noise in line with its policy and procedures. The Council referred Mr X to the Housing Ombudsman.
- Mr X remained unhappy and complained to us. He continued to make frequent complaints of ASB to the Council during the course of our investigation.
- The Housing Ombudsman can only investigate complaints made by a Council tenant or leaseholder. Mr X is a private homeowner therefore the Council wrongly signposted Mr X to the Housing Ombudsman which was fault. However, Mr X was aware he needed to complain to us rather than the Housing Ombudsman and did so. Therefore, I do not consider this fault caused him an injustice.
- The Ombudsman is not an appeal body. We cannot question the merits of a council’s decision unless we find fault in the process it took to make that decision.
- The records show the Council’s responded to and investigated Mr X’s reports of ASB and noise in line with its policy. It considered his reports, offered noise monitoring equipment, gave advice to his neighbour and then issued them with a written warning. It also referred Mr X to relevant support agencies where appropriate. In one instance it considered using its legal powers to obtain an injunction however Mr X declined to complete a statement to support this action. The Council appropriately communicated with Mr X throughout its handling of his concerns and complaints. It decided there was insufficient evidence to take further action. There was no fault in how the Council decided not to take further action on Mr X’s complaints of noise and ASB. As there was no fault, I cannot question the merits of the Council’s decision.
- While I cannot question the Council’s decision not to take further action in response to Mr X’s reports of ASB there are areas where it fell short. Mr X told Officer 1 he did not own a smart phone and therefore could not use the noise app as suggested. However, they did not record this on its system which meant Officer 2 offered the app in subsequent correspondence with Mr X. Although this caused Mr X frustration, it was a minor administrative error, and I do not deem it serious enough to find fault.
- A person who reports ASB to the Council but is dissatisfied with the response may request a review under the Community Trigger process The Council did not tell Mr X about or make him aware of the Community Trigger. The 2014 Act says complainants should request a review and information about it is published on the Council’s website. I note the Council has information about the Community Trigger process on its website however this restricts those who do not access the website from being aware of the procedure. We do not expect the public to be experts about all options available to them. Not all complainants will have ready access to the internet, for a variety of reasons, or access the Council’s website when reporting complaints of ASB. Mr X does not own a smart phone and has a single point of contact in Officer 1 who he raises concerns with directly, rather than through the website.
- Statutory guidance in force during the period of Mr X’s complaints is clear that it expects bodies to ensure victims are of the Community Trigger procedure and the circumstances in which they can apply for a review. The 2021 statutory guidance emphasises this even further. Where a person has made frequent reports of ASB, to the point where their case meets the local Community Trigger threshold, we consider councils should ensure they are aware of their right to request a review. I have considered the volume of ASB complaints Mr X has made, which met the Council’s local threshold, along with his evident dissatisfaction with the Council’s investigations. For these reasons I consider it fault that the Council did not tell Mr X about or signpost him to the Community Trigger process. It caused Mr X uncertainty over whether the outcome of his case may have been different had he been able to use the Community Trigger. The Council has agreed to include a standard paragraph about the Community Trigger in its future correspondence with complainants. This is an appropriate action to ensure complainants of ASB are properly signposted to the procedure.
- Mr X has strong feelings about the behaviour of his neighbours and wants the Council to take action against them for tenancy breaches and evict them. However, we can only consider the Council’s response to his concerns of ASB and noise. We cannot consider what action or decisions the Council took or considered in relation to its duty as a housing landlord. Further investigation into Mr X’s complaints of ASB by us is unlikely to achieve the outcome he wants.
- Within one month of the final decision the Council agreed to:
- write to Mr X and apologise to him for the uncertainty caused to him when it failed to signpost him to the Community Trigger process. It should appropriately signpost Mr X to the Community Trigger process.
- ensure its standard email and letter templates include a standard paragraph which explains and signposts complainants of ASB to the Community Trigger. The Council should also consider how it intends to signpost complainants who it deals with otherwise than in writing.
- remind its officers that the Housing Ombudsman can only investigate complaints made by a Council tenant or leaseholder and not private houseowners.
- I completed my investigation. I have found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.
Investigator's decision on behalf of the Ombudsman