Summary: Mr X complains the Council has not dealt properly with reports of noise nuisance. The Council is at fault because it delayed investigating his complaint, did not follow its guidance, did not consider using all its powers to deal with anti-social noise and did not deal with his complaint properly. The Council should apologise to Mr X, pay Mr X £700 in respect of avoidable distress caused to him and provide guidance to staff.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council has failed to deal properly with reports of noise nuisance because it has:
• Delayed dealing with complaints;
• Delayed monitoring with noise monitoring equipment;
• Delayed assessing noise monitoring equipment recordings;
• not reviewed or assessed diary or NoiseApp evidence;
• allocated the same officer as for a previous investigation he was unhappy about;
• not dealt with a Community trigger request properly
2. Mr X says he and his family have suffered distress and has been subject to noise nuisance for longer than necessary.

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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. 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)
5. 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

6. I spoke to Mr X about his complaint and considered documents provided by Mr X. I made enquiries of the Council and considered its response and the supporting documents it provided.
7. Mr X and the organisation 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

Law, guidance and policies

Statutory nuisances

8. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
9. Typical things which may be a statutory nuisance include noise from premises.
10. 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.
11. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
12. 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.
13. 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.

Abatement notices

14. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
15. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
16. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

Section 82 of the Environmental Protection Act 1990

17. 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.
18. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82.

ASB

19. Councils have a general duty to take action to tackle anti-social behaviour (ASB). But ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation.
20. For example, they may approach a complaint:
• as an environmental health issue, where the complaint is about noise
• using powers under the Anti-social Behaviour, Crime and Policing Act 2014.
21. The 2014 Act introduced new powers for agencies involved in tackling ASB. These include the power to issue community protection notices (CPN).
22. Councils and the police can issue Community Protection Notices (CPN) to prevent anti-social behaviour which is having a negative effect on the community's quality of life, and which they decide is unreasonable. CPNs require the behaviour to stop and, where appropriate, require the recipient to take reasonable steps to ensure it is not repeated. Failure to comply is an offence, and may result in a fine or a fixed penalty notice.
23. Councils must issue a written warning in advance of the CPN. It is for the person issuing the written warning to decide how long is appropriate before serving a CPN. A CPN can be appealed in the Magistrates' Court within 21 days by the recipient if they disagree with the council’s decision.
24. A council may issue a CPN while it is investigating whether the behaviour is a statutory nuisance. Issue of a CPN does not affect the council’s obligation to serve an abatement notice under Part 3 of the Environmental Protection Act 1990, where the relevant test is met.

Community Trigger

25. The Anti-social Behaviour, Crime and Policing Act 2014 introduced a mechanism to review the handling of complaints of anti-social behaviour (ASB). This is commonly known as the ‘Community Trigger’ process. 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.
26. 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.
27. 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.

Investigating Noise Complaints – the Council’s website

28. The Council says it will:
• in most cases, ask you to keep a diary of the noise events, either using an app or as a written record;
• contact the person you have said is making the noise. This is to let them know a complaint has been made and to try resolving the problem through advice, information and discussion;
• investigate to see if the noise being experienced is a nuisance.
• where there is a nuisance, a noise abatement notice can be served to stop, reduce or restrict the noise. If the noise then continues, we will gather evidence to consider taking a prosecution.
29. When a complaint is made, the Council says it will agree a plan of what can be done to help with the situation, involve other agencies if necessary and keep in touch.

The Council’s Environmental Enforcement Policy

30. The Council will carefully consider a range of criteria before making a decision regarding enforcement and will consider whether there is a shared or complementary enforcement role with other teams or agencies.
31. After considering all relevant information one or more of the following courses of action shall be taken, including No Action; Informal action; Community Protection Warning/Notice; Fixed Penalty Notice; Statutory Notice/Abatement Notice; Seizure; Simple caution; Prosecution or an Injunction.

What happened?

32. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
33. Mr X complained to the Council in December 2020 about noise caused by a neighbour.
34. The Council provided log sheets for Mr X to complete in December as well as an electronic ‘NoiseApp’ to make evidence recordings. Mr X used the NoiseApp to make recordings for the Council.
35. The Council assessed Mr X’s NoiseApp recordings in February 2021 and recommended that noise monitoring equipment (NME) was installed. NME was installed in Mr X’s house for a week in March 2021. Mr X continued to provide PA NoiseApp recordings to the Council.
36. There was a delay to the review of evidence collected by the NME caused by officer sickness and annual leave.
37. Mr X complained to the Council in May about continuing noise problems and the service response. The Council replied to Mr X’s complaint apologising for the delay and allocating Mr X’s case to another officer to complete. Mr X stated he was dissatisfied with the officer his case was reallocated to.
38. Mr X also made a Community trigger request in May, raised through the Police.
39. The Council completed its review of the NME evidence and told Mr X that some of the recordings did not warrant further consideration but that others had a material impact and required further investigation.
40. Mr X said he was unhappy with the continuing delays and outcome of the Council’s assessment of the NME evidence from March 2021.
41. The Council told Mr X its focus was on the NME evidence and noted the large number of NoiseApp submissions he had made, and advised him to continue making NoiseApp recordings subject to some parameters it set out.
42. The Council responded to Mr X’s complaint at the end of May. It issued a noise abatement notice to Mr X’s neighbour and closed the complaints case. Mr X was advised to open a new NoiseApp case and begin making further recordings
43. Mr X told the Council the problems were continuing. The Council told Mr X to continue to make NoiseApp recordings but only for impact noise. Mr X remained unhappy about non-impact noise.
44. A meeting was held regarding Mr X’s Community Trigger request. Mr X remained unhappy with the outcomes of the community trigger meeting.
45. The Council was still investigating Mr X’s noise complaint.
46. The Council installed NME again at two properties in July. Mr X says he sent concerns to the Council at the end of July.
47. The second set of NME recordings were reviewed by the Council. It told Mr X in August 2022 that non-impact noise was not a statutory nuisance and there was evidence of impact noise but not sufficient to support a breach of notice. Mr X says the Council’s response didn’t refer to his concerns sent in July.
48. The Council decided that the focus should be on resolving the noise issues rather than responding to the complaint. In early September, the Council told Mr X that it would continue to investigate noise issues but that complaint about the noise investigation would not be responded to.
49. The Council considered responding to Mr X’s complaint at stage two of its complaints process towards the end of October. The Ombudsman advised the Council in November 2021 that it would not be appropriate to escalate to Stage 2 and consider in parallel with a complaint to the Ombudsman. The Council paused the investigation and advised Mr X of this.
50. The Council followed up impact noise with Mr X’s landlord. In November a housing assessment was carried out after being offered to Mr X in September.
51. The Council is still investigating Mr X’s noise complaints.

Analysis

Noise Complaint Investigation Delays

52. The Council asked Mr X to complete log sheets and the NoiseApp recordings within a few days of receiving his noise complaint. The Council installed NME one month after Mr X’s NoiseApp recordings had been assessed. The Council followed the proper process. There are no set timescales for this. This is not fault by the Council.
53. The Council says, “There was a significant delay between the NME being installed and the final report being produced that was used as the basis for serving an abatement notice. This was caused by the investigating officer (IO) having an urgent job to complete immediately prior to taking leave which merged into approx. 5 weeks of sick leave.”
54. The Council has already accepted in its complaint response and response to my enquiries that there was a delay in the handling of Mr X’s case in early 2021. This is fault by the Council. The Council has already apologised for the delay and attempted to limit further delays by re-allocating Mr X’s case to another officer. I consider this an appropriate remedy.
55. After the NME was installed in July, Mr X told the Council that this evidence was unrepresentative because the neighbours making the noise had COVID-19 during that time. The Council did not review any NoiseApp recordings made by Mr X between August and October. Emails show the Council did not respond to Mr X’s concerns until mid-October, after which the NME was again offered to him.
56. The Council delayed addressing his specific concerns for two and a half months. This is fault by the Council. Mr X suffered distress and remains uncertain whether the Council would have been able to take other action.

Evidence Review

57. Emails provided by Mr X and the Council show that the Council primarily relied on evidence from the NME. The Council told Mr X that it may refer back to NoiseApp recordings if necessary. It said the number of messages and recordings that he had provided made reviewing them all impossible.
58. I have seen an email from the Council to Mr X in May which indicates that the Council did review an unknown quantity of NoiseApp recordings made by Mr X because it referred to them specifically. The Council explained it could not review all the recordings provided by Mr X and asked him to limit the number of recordings he sent to the Council.
59. The Council’s response to my enquiries shows that after Mr X submitted his initial evidence it continued its investigations through NME and then issued a statutory abatement notice in May. The Council did investigate whether the noise complained about was a statutory nuisance because it issued an abatement notice. The Council says,” The emphasis was placed on NME recordings as this evidence carries more weight should the investigation result in prosecution. The Noise App recordings help to determine whether further investigations are required, however they are open to challenge and cannot be relied upon.”
60. Mr X clearly overwhelmed the Council with recordings using the NoiseApp. It wasn’t until late May that the Council provided guidance to Mr X about this. This created a divergence of expectations. The Council did not have resources to review all the information sent to it, but Mr X was initially under the belief that it would do so when it considered his noise complaint.
61. There is no evidence that the Council agreed a plan with Mr X about how to deal with his complaint. This was the root cause of the differing expectations. Mr X did not receive any guidance about using the NoiseApp until the end of May. If the Council had done this, it could have potentially avoided being overwhelmed with information it was then unable to include in its assessment, up to the advice it gave in May.
62. The Council says, “it would be unreasonable and disproportionate ... to have considered over 1500 recordings in this case, and that a representative sample of records was sufficient to make the necessary assessment.” I have seen a schedule of the NoiseApp reports reviewed by the Council in February and July 2021. The Council did not review any NoiseApp reports from Mr X between August and October 2021 to assess whether any further action was necessary.
63. The Council did not follow its own guidance about dealing with noise complaints. On the balance of probabilities, it did not consider all relevant information, as per its environmental enforcement policy. This is fault by the Council, however Mr X also contributed to the problems by submitted such a large number of recordings earlier in 2021. Mr X remains uncertain whether the outcome would have been different had all the NoiseApp recordings been reviewed.
64. The Council says there was a multi-agency response to Mr X’s noise concerns.
• There are emails showing contact between the Council and Mr X’s housing provider.
• There are no formal records of any multi-agency agreements about how to address any behaviour possibly constituting ASB.
• The police and Mr X’s housing provider were involved in the community trigger meeting.
• I have seen emails provided by Mr X which indicate that other formal multi-agency meetings took place only after October 2021.
65. The Council says it tried to resolve Mr X’s noise complaint informally by:
• Encouraging informal resolution between Mr X and the alleged noise source;
• Contacting the alleged noise source and providing advice;
• Offering mediation; and
• Attempting to arrange for the noise to be recreated and then observed in Mr X’s property.

I have seen emails which partially support the Council’s statement. There is no evidence that mediation was undertaken before February 2022. On the balance of probabilities, the Council made informal attempts to resolve Mr X’s noise complaint.

66. The Council accepted there were potential anti-social behaviour issues because it considered Mr X’s request in late May met its threshold and it then held a community trigger meeting in July.
67. Mr X told the Council in July that the housing provider would not consider anything other than statutory nuisance as ASB.
68. The Council reviewed two weeks of NoiseApp recordings from Mr X as agreed at the community trigger meeting. Emails show the Council considered whether these evidenced a statutory nuisance but did not consider whether these justified using its powers relating to anti-social behaviour. The Council did not review or consider any NoiseApp recording made by Mr X after July.
69. I have not seen evidence that the Council considered the use of other powers to deal with anti-social behaviour available to it, outlined in paragraphs 21 to 24 above. This is fault by the Council. Mr X suffered distress and remains uncertain whether the Council would have been able to take other action.
70. Emails between Mr X and the Council show the Council did consider sharing information with Mr X’s landlord about the noise complaint. A Housing Health and Safety Rating System assessment was considered in August 2021 and the Council proposed this to Mr X in September. Mr X declined to participate. The Council completed this in November 2021. I have seen an email provided by Mr X which shows he was aware of this taking place shortly afterwards. This is not fault by the Council.

Reviewing Officer

71. The Council allocated Mr X’s case to another officer in order to try to reduce further delays to dealing with his noise complaint. This is not fault by the Council.

Community Trigger request

72. The Council decided to hold a community trigger meeting and sought information from relevant partners. A meeting was held which considered Mr X’s concerns and an action plan was produced. The Council followed the correct process concerning the community trigger request. Mr X does not agree with the outcome of the community trigger meeting. However, in the absence of any procedural fault I cannot find fault by the Council concerning the outcomes of the meeting itself.
73. The Council told Mr X that it would provide him with a more detailed record of the community trigger meeting. There is no evidence that it did so. This is fault by the Council. Mr X has not received the detailed record he was told he would get.

Complaint Handling

74. Information from the Council shows that Mr X contacted it expressing his clear dissatisfaction with the Council’s stage one complaint response soon after he received it at the end of May. There was further communication between Mr X and the Council by email and online complaints. The Council accepts that its complaint response letter did not advise Mr X that he could escalate his complaint to stage two. The Council should have escalated his complaint to stage two of its complaints process without delay. This is fault by the Council. Mr X lost the opportunity to have his complaint considered properly by the Council.

Action by the Council

75. The Council says it has/is taking the following action:
• Developed guidance on the use of the Noise App;
• Updated letters to ensure correct information is provided to complainants; and
• Reviewed and updated its complaints policy.
76. The original noise nuisance investigation has been closed. Mr X has since raised a new noise complaint and the Council is investigating.

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Agreed action

77. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Mr X for the additional delay, failure to provide detail from the community trigger meeting and failure to consider all enforcement options;
• Pay Mr X £700 for avoidable distress caused by uncertainty and by the failure to consider all enforcement options in light of the evidence provided;
• Provide guidance to staff to ensure that the Council considers and documents the rationale for the use or otherwise of anti-social behaviour powers available to it during investigations.

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Final decision

78. I have found fault by the Council, which caused injustice to Mr X. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman