Summary: Mr C complains about the way the Council dealt with his reports of anti-social behaviour by his neighbour. Mr C says he suffered nuisance for longer than necessary. We have found delay and fault in the Council’s complaint handling but consider the agreed action of an apology, £250 and a review of procedure provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council failed to properly investigate and take effective and timely action in response to his reports of anti-social behaviour by his neighbour. Mr C says this behaviour included noise nuisance from banging and shouting; rubbish being left around his neighbour’s property and in his garden; and his neighbour filming him.
2. Mr C says because of the Council’s fault, he and his partner suffered from unacceptable levels of noise and an unsightly build-up of rubbish which attracted vermin for longer than necessary and caused them significant upset.

Back to top

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 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)

Back to top

How I considered this complaint

5. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

Back to top

What I found

Statutory nuisance

6. Under the Environmental Protection Act 1990 councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. 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.

7. 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.
8. 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.
9. Councils can also decide to take informal action if the issue complained about is causing a nuisance but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
10. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.

Anti-social behaviour

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

12. 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.
  Community Protection Notices

Community Trigger

13. The Anti-social Behaviour, Crime and Policing Act 2014 also introduced a mechanism to review the handling of complaints of ASB. This is commonly known as the ‘Community Trigger’ process.
14. 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. 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 more 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. We can only consider councils’ actions in an ASB case review. Any contribution made by other relevant bodies, such as the police, is not in our jurisdiction.
15. The Council’s review threshold is three separate incidents of ASB in the previous six months, to the Council, the police or housing provider.

Key events

16. Mr C reported noise from his neighbour to the Council in mid-February 2021. The Council wrote to Mr C with details of its noise app and how to submit noise recordings. The Council also wrote to Mr C’s neighbour to say they had received a report of noise.
17. Mr C provided recordings to the Council in early March. The Council acknowledged these via the app. Mr C provided further recordings during March and April. The Council did not provide a response to Mr C about his recordings.
18. Mr C made a further report of noise and ASB to the Council in April. The Council sent the same standard letter to both Mr C and his neighbour as it had sent in February. The Council also discussed the issues of ASB with Mr C towards the end of April and provided diary sheets for completion. The Council did not review Mr C’s previously provided noise recordings to consider if they could be considered ASB.
19. Mr C returned completed diary sheets to the Council at the end of April about ASB. The Council discussed the incidents Mr C had recorded on the diary sheets and highlighted some issues with how they had been recorded.
20. Mr C reported rubbish and toys being thrown into his garden in May.
21. The Council had taken enforcement action about the accumulation of waste at the neighbour’s property between April and June in response to another resident’s report. The waste was removed in June. The Council suggested mediation to another resident who had also reported ASB by Mr C’s neighbour. However, the Council says it did not consider the noise being reported by Mr C provided enough evidence to be considered ASB. The Council did not provide Mr C with the outcome of its ASB investigation.
22. Mr C contacted the Council in June as he had not received a response. The Council wrote to Mr C in June to say the noise reported did not constitute a statutory nuisance and the noise was normal household noise. This did not address the other issues Mr C had reported.
23. The Council has confirmed it did not consider Mr C’s reports under the Community Trigger process. The Council says it publishes the process on its website but considers it is the responsibility of a complainant to make a request to use the process.
24. The Council continued to receive reports about waste including soiled nappies and fly-tipping at the property of Mr C’s neighbour. The Council took further enforcement action.
25. Mr C moved to a different property in December.

Analysis

Response to reports

26. The Council has accepted there was an unacceptable delay between Mr C submitted his noise recordings in March and being informed of the outcome of the analysis of the recordings in June. This is fault. The Council suggests this did not cause Mr C an injustice as its decision was ultimately that the noise did not constitute a statutory nuisance. I do not agree this is the case. Although the Council advised Mr C the noise did not meet the high threshold for statutory nuisance it did not provide a clear explanation of why his reports (including about other issues) were also not considered to be evidence of ASB. This is fault. In the context of Mr C’s own reports to the Council about noise and other ASB and those from other residents, it is understandable that Mr C felt his reports had been dismissed and was caused uncertainty about how they had been assessed. I consider this injustice requires a remedy. I have considered the enforcement action the Council did take during the same period in relation to other residents’ reports which may have reduced the impact on Mr C.
27. I am also concerned about the Council’s approach to the Community Trigger process. We expect councils to signpost a complainant to the Community Trigger process if they have made enough ASB reports to reach or pass the local threshold. The Council’s website also says if a person has an ongoing complaint their case will not be appropriate for the Community Trigger process. The Community Trigger should not be treated as an alternative or supplementary complaints process. It is about ensuring authorities consider if there is more they can do to protect a complainant from ASB in the present and future, rather than remedying any fault or injustice from their previous actions. An ongoing complaint should not prevent the Community Trigger process.

Complaint handling

28. The Ombudsman asked the Council to investigate Mr C’s complaint under its complaint procedure on 25 June. We enclosed a copy of Mr C’s complaint form and asked the Council “please can you arrange for this complaint to be considered and a response sent to the complainant.” We followed this up with an email to the Council on 29 June which stated, “To avoid confusion, can you just confirm please that the Council will be putting … the attached complaint through the complaints process?” The Council replied to the Ombudsman on 30 June to confirm it would put the matter through its complaints procedure. Despite reminders from the Ombudsman on 11 and 24 August, the Council failed to do so. This is fault.
29. The Council says it had understood Mr C would submit his own complaint directly to it for investigation. I am concerned at the apparent misunderstanding given the content of the email exchange above and the clear commitment by the Council to put the complaint through its complaint procedure.

Back to top

Agreed action

30. To provide a remedy to Mr C the Council will complete the following:
1. write to Mr C to apologise for its failure to provide a response to his complaint and the faults identified above in the way it responded to his reports within one month of my final decision;
2. pay Mr C £250 for his uncertainty and time and trouble in pursuing the matter within one month of my final decision;
3. review its procedures and staff guidance to ensure premature complaints received from the Ombudsman are actioned and a response provided to the complainant within three months of my final decision; and
4. review its website and procedure and provide staff guidance to ensure complainants that meet the local threshold are advised of the Community Trigger process and are not restricted from using this due to an ongoing complaint within three months of my final decision.

Back to top

Final decision

31. I have completed my investigation as I have found fault by the Council but consider the agreed action above provides a suitable remedy.

Back to top

Investigator's decision on behalf of the Ombudsman