Summary: Ms E and Mr F complained the Council failed to deal with the noise and anti-social behaviour near to where they live. They also say the Council blocked a request from their housing provider to carry out a property transfer and it failed to deal with their complaint. We find the Council was at fault for its complaints handling and its failure to tell Ms E and Mr F about the community trigger review process. It also unreasonably raised their expectations they would be considered for a property transfer. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Ms E and Mr F complained the Council failed to deal with the noise and anti-social behaviour near to where they live. They also say the Council blocked a request from their housing provider to carry out a property transfer. Finally, they say the Council has failed to deal with their complaints.
2. Ms E and Mr F say they have suffered from serious mental, physical and emotional distress because of the Council’s failure to deal with the issues.

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What I have investigated

3. I have investigated the Council’s actions from January 2020 onwards. I have not investigated matters before January 2020 for the reasons explained at the end of this statement.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
6. 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)
7. If we are satisfied with an organisation’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

8. I considered information from Ms E and Mr F. I made written enquiries of the Council and considered information it sent in response.
9. Ms E, Mr F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Anti-social behaviour

10. Section 2 of the Anti-social Behaviour, Crime and Policing Act 2014 (2014 Act) defines anti-social behaviour as conduct:

1. That has caused, or is likely to cause, harassment, alarm, or distress to any person.
2. Capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.
3. Capable of causing housing related nuisance or annoyance to any person.

11. The 2014 Act introduced new powers for councils, the police and other bodies to tackle anti-social behaviour. Councils may apply to the courts for a civil injunction or make a Public Spaces Protection Order.

Community trigger process

12. The 2014 Act also introduced a mechanism for alleged anti-social behaviour victims to request a review of the handling of their case by the ‘relevant bodies’. This is commonly known as the ‘community trigger’.
13. The relevant bodies for the community trigger process are the local council, police, clinical commissioning group, and social housing providers. They should agree a local community trigger policy, which will set a threshold at which complainants can request a review.

The Council’s local community trigger policy

14. The Council’s published information shows it will complete a review will if an individual has complained to the Council, police or a registered housing provider (social landlord) about three separate incidents in the last six months and the individual considers there has been no action taken.

Statutory noise nuisance

15. Councils have a legal duty under the Environmental Protection Act 1990 to investigate complaints about potential statutory nuisances, including noise. For a noise to amount to a statutory nuisance it must do one of the following:

• Unreasonably and substantially interfere with the use of enjoyment of a home or other premises; or
• Injure health or be likely to injure health.

16. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits.
17. 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.
18. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice.

The Council’s noise policy

19. When someone complains about noise nuisance, it will be acknowledged by the Council’s noise service. An officer will send a text message to the complainant within 45 minutes asking them to confirm whether the noise or nuisance is still happening. It will then contact the complainant and investigate the complaint.
20. An officer may need to visit the property to witness the noise or nuisance in person.

The Council’s housing allocation scheme

21. In certain circumstances, the Council may agree to assist tenants who live in housing associations on a reciprocal basis. This is usually in a crisis or when it benefits the Council to offer a reciprocal because this will produce a vacant property that is valuable in meeting housing demand.
22. All reciprocal arrangements are agreed on a discretionary basis and the Council retains the right to decline a request for a reciprocal agreement if it is not considered in its best interests.
23. Reciprocals are only agreed when there is no material loss of the Council in terms of available housing stock.

The Council’s complaints procedure

24. The Council aims to respond to complaints at stage one within 10 working days. It aims to respond to complaints at stage two within 20 working days.

What happened

25. This chronology is a summary of key events in this case and does not outline everything that happened.
26. Ms E and Mr F have been experiencing noise nuisance and anti-social behaviour in the local market square near to where they live for several years. They have continuously used the Council’s noise service and sent emails to report the issues.
27. The Council’s records show it attended the site on numerous occasions after Ms E’s and Mr F’s reports.
28. Ms E complained to the Council on 9 June 2020 it had failed to send an officer to investigate her noise complaint. She also said she wanted the Council to investigate the issues in the area. The Council did not respond to the complaint.
29. Ms E and Mr F are joint tenants of a housing association property. A local councillor contacted the Council on 15 September and asked if Ms E and Mr F could bid on a Council home as part of a reciprocal transfer.
30. Mr F complained to the Council on 28 September about the ongoing issues and its failure to resolve them. The Council did not respond.
31. The Council responded to the councillor’s query on 29 October. It said given the housing pressures and the impact of the COVID-19 pandemic, it could not consider a reciprocal transfer. It said that Ms E and Mr F should continue to bid for a property on the housing association’s allocations list.
32. An officer from the housing association emailed the Council on 24 November and asked if it could offer Ms E and Mr F a reciprocal transfer. The Council responded and said if it was to agree a transfer, Ms E and Mr F would need to bid for three months. If they were not successful, it would make one direct offer.
33. The housing association officer emailed the Council in December and said Ms E and Mr F were happy to agree to the terms. The Council asked for their full name and address, which the housing association officer provided on the same day.
34. Ms E raised a further complaint on 14 December about the Council’s failure to attend to investigate an incident on 11 December. The Council did not respond to the complaint.
35. As the issues had not been resolved, the Council applied to court to seek an injunction order to prohibit individuals from anti-social behaviour and noise related issues.
36. The court granted an injunction order in March 2021. The Council and the police can enforce the order but only police officers have authorisation to request personal details and powers to enforce refusal.
37. The Council also implemented a Public Space Protection Order. This order is designed to stop individuals or groups behaving anti-socially in a public place.
38. The Council’s notes from March show it decided to close Ms E’s and Mr F’s complaints because it wanted to see if the injunction would resolve the issues.
39. Ms E emailed the Council in April and said she did not agree to it closing her complaint. She asked for the details of her complaint. The Council responded and said it had closed all her complaints but one as they were the same issue.
40. Ms E complained again to the Council on 14 May.
41. The Council responded to the housing association officer’s email from December 2020 on 25 May. It apologised for the delay and said it had previously refused the reciprocal transfer request in October 2020. It said it was reviewing the available properties for letting and would contact him again if it could proceed.
42. The Council responded to Ms E’s complaint in August. It partially upheld the complaint and said the mechanisms it had implemented had not improved the problems successfully. It also said it refused her request for a reciprocal transfer due to the pressures on housing stock.
43. The Council emailed the housing association officer in November and said it could not offer a reciprocal transfer.
44. Ms E remained dissatisfied with the Council’s response to her complaint and so contacted the Ombudsman. Ms E and Mr F have continued to experience anti-social behaviour and noise nuisance issues since referring the complaint to the Ombudsman.

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Analysis

45. The Council has attempted to deal with the anti-social behaviour and noise nuisance issues. It has liaised with the police and visited the site on numerous occasions. It has also exercised its powers under the 2014 Act by applying to court get a civil injunction and implementing a Public Spaces Protection Order. Therefore, I do not accept Ms E’s and Mr F’s assertion the Council has made no attempt to deal with the issues.
46. Having said that, the Council partially upheld Ms E’s complaint and accepted despite it implementing the above mechanisms, it had carried out limited enforcement action. This leaves Ms E and Mr F with some uncertainty about whether there would have been an improvement with the issues had the Council’s enforcement action been more robust.
47. After Ms E complained, the Council says it took further action to deal with the issues, including joint enforcement operations with the police. It has no evidence to prove these enforcement days took place, and so I cannot confirm they happened. However, it also created a subgroup to deal with the anti-social behaviour and introduced a new initiative to encourage more community cohesion. It has also continued to visit the site when Ms E and Mr F reported further noise issues. I am therefore satisfied the Council has worked hard to address the issues. The Council has explained the injunction is currently being challenged in the high court.
48. Ms E and Mr F say the Council has largely ignored their reports to its noise team. The Council’s procedure says once it receives confirmation the noise or nuisance is still happening, it will take appropriate action to investigate the complaint. There is nothing in the Council’s procedure that states an officer must attend the site on the same day. The Council’s records show it has dealt with Ms E’s and Mr F’s appropriately by either asking an officer to visit the site, advising them to contact police or closing the case if the noise issues had stopped.
49. When someone makes a noise nuisance complaint, councils often ask complainants to install noise monitoring equipment. The Council says Ms E and Mr F refused to allow it to enter their property to measure the noise for statutory offences. It has provided me with an email from 2018 when Ms E refused to allow Council officers to enter her property. There is no evidence the Council has explored this option Ms E or Mr F more recently. Given the ongoing issues, I would have expected it to. However, this did not cause Ms E or Mr F an injustice as it is unlikely they would have agreed to the Council’s request given the strong opposition they previously had to it entering their property.
50. Ms E says the injunction is written in a way the Council or police cannot enforce. The injunction has been considered in court, and so this issue is out of the Ombudsman’s jurisdiction.
51. Ms E and Mr F told the Council repeatedly they were not satisfied with action it was taking to deal with the anti-social behaviour. According to the Council’s policy, this would usually activate a community trigger review. The Council failed to tell Ms E and Mr F about this process, which is fault. This has caused them an injustice as they are now left with uncertainty as to whether a different outcome may have been reached.
52. The Council significantly delayed dealing with Ms E’s and Mr F’s complaints. It failed to deal with any of their complaints from 2020, even though they reported them through the correct channels. The Council says an injunction and Public Space Protection Order was in place when they complained in 2020. Ms E and Mr F had a right for their complaints to be investigated in line with the complaints procedure, even if the Council was taking action to deal with the anti-social behaviour. The Council’s failure to respond caused Ms E and Mr F frustration.
53. Ms E confirmed she did not want the Council to close her complaints in April 2021. Despite this, the Council failed to issue a formal response, which meant she was put to time and trouble by raising a further complaint in May 2021. The Council only responded to her complaint after prompting from the Ombudsman.
54. There is no evidence the Council deliberately blocked Ms E’s and Mr F’s request for a reciprocal transfer. The Council explained in October 2020 it could not proceed with a reciprocal transfer due to the housing pressures and the impact of the COVID-19 pandemic. This is line with the Council’s housing allocation scheme and so I do not find fault.
55. However, the Council confused matters because when it communicated with the housing association officer, it forgot it had previously declined the reciprocal transfer request. Its communication with the housing association officer suggested it was happy to agree to a reciprocal transfer if Ms E and Mr F agreed to the conditions. The Council took five months to realise its mistake and clarify this with the housing association officer. This fault caused Ms E and Mr F an injustice because it unreasonably raised their expectations they would be considered for a reciprocal transfer.

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Agreed action

56. To address the injustice caused by fault, by 28 July 2022 the Council has agreed to:

• Apologise to Ms E and Mr F.
• Pay Ms E £300 and Mr F £200.
• Write to Ms E and Mr F with information about the community trigger review process. When deciding on whether Ms E and Mr F meet the threshold for a community trigger review, the Council should not disadvantage them because of its own delays.

57. By 25 August 2022:

• Remind relevant staff about the community trigger review and when they should tell people about the process.
• Remind relevant staff they must investigate complaints according to the Council’s complaints procedure.

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Final decision

58. There was fault by the Council, which caused Ms E and Mr F an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Parts of the complaint that I did not investigate

59. The Ombudsman cannot investigate late complaints unless there are good reasons to do so. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. I have exercised discretion to investigate Ms E’s and Mr F’s concerns from January 2020 onwards because of the difficulties they faced getting the Council to respond to their complaints. I have not looked at issues before 2020 because I am satisfied they could have bought the earlier events to the Ombudsman sooner.

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Investigator's decision on behalf of the Ombudsman