London Borough of Newham (20 011 074)

Category : Environment and regulation > Antisocial behaviour

Decision : Upheld

Decision date : 21 Jul 2021

The Ombudsman's final decision:

Summary: Miss X complained the Council failed to find statutory noise nuisance despite evidence presented to it. Miss X also complained the Council blocked her from use of the antisocial behaviour service at the Council. Miss X also complained the Council failed to respond to her contacts from October 2019 until August 2020. Miss X says the Council’s actions caused her stress increased anxiety and a worsening of her mental health. The Ombudsman does not find fault with the Council’s statutory noise nuisance investigations or withdrawing the service from Miss X. The Ombudsman does find fault with how the Council handled Miss X’s contacts.

The complaint

  1. Miss X complained the Council failed to find statutory noise nuisance despite evidence presented to it.
  2. Miss X also complained the Council blocked her from use of the antisocial behaviour service at the Council. Miss X says the Council failed to respond to her contacts from October 2019 until August 2020.
  3. Miss X says the Council’s actions caused her stress increased anxiety and a worsening of her mental health.

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The Ombudsman’s role and powers

  1. 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)
  2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)
  3. 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)

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How I considered this complaint

  1. I have considered all the information Miss X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
  2. Miss X and the Council accepted the findings from the draft decision.

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What I found

Statutory noise nuisance

  1. The Environmental Protection Act 1990 (EPA) places a duty on councils 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
  2. There is no set level at which noise becomes a statutory nuisance. The Council’s role is to make a judgement considering several factors such as the activity, locality, time of day, frequency and duration of the noise.
  3. The Council is required to investigate complaints of noise nuisance. It will gather evidence to find out whether the noise is causing a statutory nuisance. If it finds the noise is a statutory nuisance it must act to stop it. The Council must issue an abatement notice if it is satisfied that a statutory nuisance exists.
  4. If a person breaks an abatement notice they will be guilty of an offence. A person committing an offence is liable to a fine on conviction by a Court.

Council noise nuisance policy (July 2013)

  1. The Council updated its noise nuisance policy in November 2020. However, Miss X’s complaints occurred before November 2020 so the Council handled her complaints in line with its July 2013 noise nuisance policy.
  2. The Council’s policy for handling noise nuisance outlines the action it will take when a person complains about noise nuisance. The Council’s actions are dependent on what time a person contacts it:
    • When it receives a call during normal office hours the Council will arrange for an officer to call-back within one hour. The officer will visit a person’s property if the noise is continuing.
    • When it receives a call outside normal office hours the Council will arrange for an officer to contact the complainant within one hour. The officer will discuss the issue and confirm what time they will attend this visit.
    • When it receives a call outside working hours the Council will contact the person within 24 hours to discuss the noise nuisance.
    • The Council will take a person’s contact details, detail the source of the noise according to the person complaining. The Council will update its records of the result of the visit in all circumstances.
  3. Following report of a noise nuisance the Council will take one of the following actions:
    • Send an advisory letter to the complainant and perpetrator on the first instance of complaint. The Council will do this regardless of whether the Council officer heard a noise nuisance or not. The Council will issue one advisory letter per perpetrator per six months.
    • Send a warning letter if the Council heard a statutory noise nuisance on its visit.
    • Consider issuing an abatement notice if a council officer hears a statutory noise nuisance and the Council had previously issued a warning.
  4. The Council says it will complete “reasonable investigations” when a person reports noise nuisance. The Council considers a “reasonable investigation” to be:
    • Visiting the property on three separate occasions.
    • Communicating with both the complainant and perpetrator of the noise nuisance.
    • Installation of noise monitoring equipment.
    • Collection of evidence to prove the noise nuisance.
  5. The Council’s policy says it will close a complaint if:
    • It a person does not contact it again within 28 days of reporting a noise nuisance about further issues.
    • The noise nuisance was a one-off incident and it sent an advisory letter to the perpetrator of the noise nuisance.
    • It has completed a “reasonable investigation” and found no statutory noise nuisance.
  6. The Council’s policy allows it to withdraw the noise nuisance service from a complainant when it cannot substantiate a statutory noise nuisance despite repeated callouts.
  7. For the Council to withdraw use of its service it must complete a “reasonable investigation” and decide no statutory noise nuisance. The Council should send a closing letter to the complainant explaining its investigation and reason for closure.
  8. If the person continues to complain the Council should complete one further investigation, minimum. The Council officer should discuss the matter with a manager. The Council can then write to the person withdrawing the service for a suitable timescale.

Council corporate complaints policy

  1. The Council says it will acknowledge a complaint within two days regardless of the method of communication a person uses to register a complaint.
  2. The Council’s policy allows for early resolution of non-complex issues without going through its complaints procedure. The Council will liaise with the relevant department to try to provide a quick result first.
  3. If the Council decides it needs to give a complaint a more detailed consideration, or a person asks, it will progress to its formal complaint procedure at Stage 1. The Council says it will provide a Stage 1 response within 20 working days of accepting a complaint.
  4. If a person is unhappy with the Stage 1 response they can proceed to Stage 2 of the Council’s complaint procedure. The Council will review a person’s complaint and provide a response within 15 working days at Stage 2.

Our guidance on remedies

  1. We expect bodies in jurisdiction to treat people fairly and with respect, and not to expose the public to unnecessary distress, harm or risk as a result of their actions or inactions. Such injustice cannot generally be remedied by a payment, so we usually seek a symbolic amount to acknowledge the impact of fault on the complainant. The amount depends on the circumstances of the case.
  2. When we assess distress, we consider the complainant’s individual circumstances (such as their state of health and age). In reaching a view on remedy we will consider all the circumstances including:
    • the severity of the distress;
    • the length of time involved;
    • the number of people affected (for example, members of the complainant’s family as well as the complainant);
    • whether the person affected is vulnerable and affected by distress more severely than most people; and
    • any relevant professional opinion about the effects on any individual.
  3. 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. Exceptionally, we may recommend more than this.

What happened

  1. Miss X complained to the Council on 7 May 2019 about her neighbours completing construction work from 8am till 10pm.
  2. The Council sent an advisory letter to Miss X’s neighbours on 7 May 2019. This letter reminded Miss X’s neighbours to only complete building works between 8am and 6pm Monday to Friday, 8am and 1pm on Saturday and none on Sunday. The Council also sent an advisory letter to Miss X to invite her to make a noise nuisance complaint if issues continued.
  3. Miss X also complained in May 2019 about her neighbour illegally subletting the property and about abuse of her neighbour’s dog.
  4. The Council attended Miss X’s neighbour’s property and found no evidence of abuse to the dog in May 2019. The Council wrote to Miss X to advise. The Council also passed Miss X’s licensing concern to the relevant department.
  5. Miss X complained seven times to the Council’s noise nuisance team about her neighbours in June 2019. The Council visited Miss X’s property on several occasions but found not evidence of statutory noise nuisance. Miss X also declined visits from Council officers on several occasions or the Council could not contact Miss X.
  6. The Council sent Miss X’s neighbour a Community Protection Warning on 26 June 2019. The Council sent the Community Protection Warning because of Miss X’s complaints about building works and loud music. The Council confirmed it sent this warning without witnessing a statutory noise nuisance because of the evidence and complaints Miss X provided.
  7. Miss X continued to complain to the Council about noise from her neighbours. Miss X’s complaints were about building works, loud music and the neighbour’s dog barking.
  8. The Council continued to contact Miss X about the complaints. When the Council visited Miss X it did not witness a noise nuisance.
  9. The Council also completed two separate licensing visits and found no evidence Miss X’s neighbours were illegally subletting the property.
  10. Miss X reported a noise nuisance on 26 July 2019. Council officers attended her property in response to this. Miss X complained to the Council the officers who attended were aggressive towards her.
  11. The Council confirmed it would discuss this with the noise nuisance service. The noise nuisance service contacted Miss X on 6 August 2019 and closed the complaint about the Council officer’s actions. The Council offered Miss X noise monitoring equipment in her property to get evidence of her neighbour’s noise.
  12. Miss X initially declined the offer of noise monitoring equipment as her neighbours were on holiday. Miss X accepted installation of the noise monitoring equipment on 13 August 2019.
  13. Miss X complained to her MP on 12 August 2019 about the issues with her neighbours. Miss X’s MP contacted the Council about Miss X’s concerns.
  14. The Council removed the noise monitoring equipment from Miss X’s property on 19 August 2019.
  15. The Council wrote to Miss X’s MP on 9 September 2019 to confirm it was reviewing the noise recordings from the noise monitoring equipment. The Council also confirmed it found no evidence of subletting.
  16. Miss X made five further noise complaints to the Council about her neighbours in October 2019.
  17. The Council officer finished its review of the noise recordings from the noise monitoring equipment and recommended withdrawal of service to the manager of service and head of service. The Council’s head of service and antisocial behaviour manager reviewed Miss X’s investigation and found no evidence of statutory noise nuisance. The Council wrote to Miss X on 23 October 2019 to advise it was withdrawing use of the antisocial behaviour noise service from Miss X for 12 months. The Council said it did this because:
    • Miss X made 42 complaints about her neighbours from May 2019 to October 2019.
    • It had investigated Miss X’s reports of noise nuisance and found no evidence of statutory noise nuisance.
    • Miss X’s complaints placed excessive demand on its resources and staff.
  18. Miss X complained to the Council on 23 October 2019 about the Council withdrawing use of the noise nuisance service. Miss X asked to make a formal complaint about the noise nuisance department.
  19. The Council’s antisocial behaviour team said it would pass Miss X’s complaint to its complaints team on 26 October 2019.
  20. Miss X chased the Council for a response. The Council confirmed its reasons to Miss X about its decision to withdraw the noise nuisance service on 23 November 2019. The Council said it would process Miss X’s formal complaint through its complaints procedure.
  21. Miss X chased the Council for a response to her complaint on 15 December 2019 and 19 April 2020. The Council said it had passed Miss X’s complaint to the complaints department on 21 April 2020.
  22. Miss X complained to the Council again on 11 August 2020 as the Council had not responded to her formal complaints. Miss X said she had been trying to raise a complaint about the antisocial behaviour and noise team since October 2019 but the Council had ignored her. Miss X said Council officers made up results about what they could hear and discriminated against her. The Council accepted Miss X’s complaint on 13 August 2020.
  23. The Council provided its Stage 1 response to Miss X on 5 October 2020. The Council said it did not uphold Miss X’s complaint. The Council said it had logged Miss X’s complaints about noise nuisance, visited Miss X’s property and installed noise monitoring equipment without finding evidence of statutory noise nuisance. The Council supported the decision to withdraw Miss X’s use of the service but offered to reduce this to six months.
  24. Miss X asked for a review of the Stage 1 response.
  25. The Council provided its Stage 2 response to Miss X on 27 October 2020. The Council said it partially upheld Miss X’s complaint. The Council said:
    • It apologised for not responding to Miss X’s complaint in April 2020.
    • Its investigations found no evidence of statutory noise nuisance despite recordings and visits to Miss X's property.
    • It acted in line with its policy when withdrawing use of the service from Miss X.
    • Miss X could approach the Housing Ombudsman with her complaint if she disagreed with the Council’s response.
  26. Miss X complained to the Housing Ombudsman who directed Miss X to the Local Government and Social Care Ombudsman.

Analysis

  1. The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Neither are we a court, and so cannot determine or define the law.
  2. The Ombudsman must decide if the Council has considered the relevant legislation and policies in making its decisions. If the Council has considered the relevant policies and reached a suitable decision in line with these policies, the Ombudsman cannot find fault.

Statutory noise nuisance investigations

  1. Miss X complained the Council did not find statutory noise nuisance by her neighbours despite evidence of it.
  2. The Council’s policy on noise nuisance outlines the actions it will take when a person reports noise nuisance to it.
  3. In May 2019, the Council sent an advisory letter to Miss X’s neighbours about the noise nuisance complaint. This advisory letter reminded Miss X’s neighbours about suitable hours to complete building works. Since this was Miss X’s first complaint, the Council acted in line with the first steps of its policy, and I do not find fault.
  4. Miss continued to complain to the Council about noise nuisance from her neighbours in May, June and July 2019. The Council has recorded each report of noise nuisance reported by Miss X. The Council has also demonstrated records of many visits to Miss X’s property to try to witness the noise nuisance. The Council also offered many more visits which Miss X declined.
  5. The Council has acted in line with is policy by contacting Miss X and, where agreeable, attending Miss X’s property to try to witness the noise nuisance. The Council officers have not witnessed a statutory noise nuisance on any of their visits. The Council officers recorded this with the Council. The Council has acted in line with its policy, and I do not find fault.
  6. The Council sent Miss X’s neighbours a Community Protection Warning in June 2019 despite not witnessing a noise nuisance. The Council’s policy says it will issue a Community Protection Warning if it hears a statutory noise nuisance. In Miss X’s complaint, the Council did not witness the nuisance first-hand but considered on the balance of information Miss X provided it was fitting to send a Community Protection Warning. It is not always possible for a Council officer to witness a noise nuisance. I consider the Council has acted appropriately in applying its discretion in the circumstances to issue the Community Protection Warning on the balance of evidence available.
  7. The Council installed noise monitoring equipment in Miss X’s property in August 2019 to try to get further evidence of noise nuisance. The Council found no evidence of statutory noise nuisance on reviewing the recordings. The Council has followed its policy and provided Miss X with the means of recording her concerns of noise nuisance. I do not find fault with the Council.
  8. The Council has completed “reasonable investigations” into Miss X’s reports of statutory noise nuisance in line with its policy. Since the Council has followed its policy I cannot question the merits of the Council officers decision. I do not find fault with the Council failing to find a statutory noise nuisance.

Blocking use of antisocial behaviour noise service

  1. Miss X complained the Council blocked her from using the antisocial behaviour noise service in October 2019 for 12 months.
  2. The Council says it withdrew Miss X’s access to this service in line with its policy.
  3. The Council’s noise nuisance policy allows the Council to withdraw access to its noise nuisance service. The Council can only do this when it cannot prove a statutory noise nuisance despite repeated call-outs and its has completed “reasonable investigations”.
  4. As noted in paragraph 60, the Council has completed “reasonable investigations” into Miss X’s reports of statutory noise nuisance. The Council has not found evidence of statutory noise nuisance despite 42 complaints of noise nuisance from May 2019 to October 2019. As above, I do not find fault with the investigations by the Council into Miss X’s reports of statutory noise nuisance.
  5. The Council’s policy says it should have written to Miss X first to advise of closure of its investigation. If Miss X complained further, the Council officer could have a manager review their investigation before withdrawing the service.
  6. The Council officer recommended withdrawal of the service to their manager before sending a closure to Miss X explaining the reasons for their decision. The Council has deviated from its policy and withdrawn the service from Miss X before sending the closure letter. This would normally be fault.
  7. However, the Council reviewed Miss X’s appeal against withdrawal of the service. Following this review, it wrote to Miss X in November 2019 confirming it upheld withdrawal of the service. By reviewing the decision to withdraw the service the Council has corrected its previous error by withdrawing the service without sending the closure letter.
  8. The Council has completed “reasonable investigations” into Miss X’s reports of statutory noise nuisance. The Council found no evidence of statutory noise nuisance despite many complaints. The Council wrote to Miss X explaining its decision to close her noise nuisance complaints and its intention to withdraw the service in October 2019. The Council reviewed its decision to withdraw the service on appeal and confirmed it upheld this decision with Miss X in November 2019. I do not find fault with the Council.

Handling of complaints

  1. Miss X complained the Council failed to respond to her complaints from October 2019 to August 2020.
  2. The Council’s complaint policy says the Council will raise a formal complaint if a person asks for it or the complaint requires longer consideration than through an informal response.
  3. The Council failed to raise a formal Stage 1 complaint despite Miss X’s requests in October 2019, November 2019, December 2019 and April 2019. This is fault.
  4. The Council only raised a Stage 1 complaint on 13 August 2020, following Miss X’s contact on 11 August 2020. This meant the Council delayed for nearly ten months in registering Miss X’s complaint through its complaint process. This delay caused Miss X stress and inconvenience.
  5. The Council took 38 working days, from 13 August 2020 to 5 October 2020, to produce its Stage 1 complaint response. The Council’s policy allows the Council 20 working days to provide a Stage 1 complaint response. The Council failed to meet this timescale. This is fault.
  6. When the Council provided its Stage 1 complaint response it offered to reduce withdrawal of the service from 12 months to six months. Withdrawal of the service from Miss X was due to expire on 23 October 2020. This offer would effectively only result in a reduction of two and a half weeks.
  7. Had the Council raised a Stage 1 complaint in response to any of the contacts before August 2020, the Council’s offer to reduce withdrawal of the service to six months would have benefited Miss X. The Council’s failure to register Miss X’s complaint before August 2020 also caused Miss X a lost opportunity at having withdrawal of the service reduced.
  8. The Council’s policy allows it 15 working days to produce its Stage 2 response from a person’s request. The Council met this timescale. I do not find fault.
  9. Within the Council’s Stage 2 response it directed Miss X to the Housing Ombudsman for escalation of her complaint. This was incorrect information from the Council for the nature of Miss X’s complaint. The Council should have directed Miss X to the Local Government and Social Care Ombudsman. This is fault.
  10. This fault caused Miss X added delays, frustration and inconvenience by having to complain to the Housing Ombudsman before they directed Miss X to the correct service.

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Agreed action

  1. Within one month of the Ombudsman’s final decision the Council will:
    • Apologise to Miss X and pay her £150 to reflect the delays she experienced and poor information provided by the Council throughout its complaint process. This caused Miss X avoidable frustration, stress, inconvenience and lost opportunity at having her withdrawal of the service reduced.

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Final decision

  1. There was fault by the Council. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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