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Huntingdonshire District Council (21 002 179)

Category : Environment and regulation > Antisocial behaviour

Decision : Upheld

Decision date : 20 Oct 2021

The Ombudsman's final decision:

Summary: Ms X complained the Council dismissed her complaints about noise nuisance from her neighbours. Ms X also complained about how the Council officers handled her complaint. Ms X says the noise nuisance and the Council’s actions caused her distress. The Ombudsman does not find fault with the Council’s decision about the existence of a statutory noise nuisance. The Ombudsman does not consider the fault by the Council through delays in responding to Ms X caused her a significant enough personal injustice to justify more than the apology the Council has already provided.

The complaint

  1. Ms X complained the Council dismissed her complaints about noise nuisance from her neighbours. Ms X says the Council told her it could not issue an abatement notice because the source of the noise was from Autistic children.
  2. Ms X also complained about the Council officer’s handling of her complaint. Ms X says the Council officer provided incorrect and inconsistent information and provided poor service through her attitude and delays in responding to her contacts.
  3. Ms X says she has spent a lot of time trying to deal with her complaint with the Council and considers the Council did not take her complaint seriously.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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

  1. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
  2. Ms X provided comments on my draft decision. I considered Ms X’s comments before making my final 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

  1. The Council’s policy for handling noise nuisance outlines the action it will take when a person complains about noise nuisance.
  2. The Council’s policy says it will start an investigation into a complaint of noise nuisance within seven working days of receiving the complaint.
  3. The Council may ask a person to keep a written log that records the details of the noise nuisance experienced. The Council will then either visit the person causing the noise nuisance or use noise measuring or recording equipment to determine if a statutory noise nuisance exists.
  4. The Council will try to resolve the noise nuisance informally in the first instance. If the Council cannot resolve the noise nuisance informally and can evidence a statutory noise nuisance it may serve an Abatement Notice on the person responsible for the noise.
  5. If statutory noise nuisance continues after issuing an Abatement Notice the Council make take court action against the person responsible for the noise.
  6. Following the investigation, the Council will advise the person complaining of the conclusion.

Council complaints policy

  1. The Council says it will acknowledge a complaint within five days of receipt.
  2. The Council says it will provide a Stage 1 response within 20 working days of accepting a complaint.
  3. 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 20 working days at Stage 2.

What happened

  1. Ms X’s neighbours moved into the property attached to Ms X in April 2018. Ms X says her neighbours caused noise from April 2018, but this became progressively worse until April 2020.
  2. Ms X contacted the Council in April 2020 about the noise nuisance caused by her neighbours. Ms X said her neighbours had autistic children who often screamed and banged on doors and walls. Ms X said she would speak to her neighbour and contact the Council again if they could not reach a solution.
  3. Ms X made a formal complaint to the Council’s Environmental Health department on 7 September 2020 about the noise nuisance from her neighbours.
  4. A council officer, Officer A, spoke with Ms X about the noise nuisance on 10 September 2020. Officer A provided Ms X with noise nuisance log sheets to complete.
  5. Ms X responded on 11 September 2020. Ms X provided Officer A with a timeline of noise nuisance issues she had already put together from April 2018 to December 2019 and from April 2020 to August 2020.
  6. The Council advised it would contact Ms X’s neighbours on agreement with Ms X. Ms X agreed and the Council sent her neighbours a letter advising it had received a complaint about noise nuisance from their property. The Council said it would be investigating the noise nuisance complaint and invited the neighbours to contact it to discuss further.
  7. The Council discussed the noise nuisance complaint with Ms X’s neighbours to try to find a solution to the noise nuisance.
  8. Ms X contacted the Council on 3 October 2020 to advise she has experienced no improvement with the noise nuisance. Ms X asked if the Council could install noise recording equipment into her property or if someone could attend to witness the noise nuisance.
  9. The Council told Ms X it would contact her once noise recording equipment became available so it could install this in her property.
  10. Ms X contacted the Council for an update on installation of the noise recording equipment on 26 November 2020. Officer A offered to install noise recording equipment into Ms X’s property on 2 December 2020. Ms X agreed to this date and the Council installed the equipment.
  11. The Council removed the noise recording equipment on 9 December 2020. Ms X also provided the Council with an update about the noise nuisance at the same time. Ms X had recorded for 56 hours of recordings on the noise recording equipment.
  12. On 23 December 2020, Officer A told Ms X she was analysing the noise recordings. Officer A said that because of the length of the recordings it would not be until the start of January 2021 that she could provide a further update.
  13. Officer A completed her analysis of the noise recordings on 28 January 2021. Officer A noted that she could hear various sounds in the recordings including noise from next door including tapping and crying. Officer A decided that while she could hear noise this was not a statutory noise nuisance.
  14. Ms X asked the Council for an update on 29 January 2021. Officer A called Ms X and apologised for the delay in completing the analysis. Officer A told Ms X that while she could hear noise this did not constitute a statutory noise nuisance. Ms X asked Officer A to listen to particular recordings, providing the date and time, for evidence of noise nuisance.
  15. Ms X made a formal Stage 1 complaint to the Council on 3 February 2021. Ms said that:
    • She had been complaining to the Council about noise nuisance from her neighbours since April 2020.
    • The Council installed noise recording equipment into her property but decided it had no evidence of statutory noise nuisance.
    • Officer A was dismissive of her complaint and she wanted someone else to deal with her noise nuisance complaint moving forwards.
  16. Officer A contacted Ms X on 10 February 2021 to advise she had listened to the recordings at the dates and times Ms X had detailed. Officer A told Ms X she did not consider the noise recorded approached the level that could be considered a statutory noise nuisance. Officer A offered Ms X noise recording equipment again to get further evidence of noise nuisance. Ms X responded to Officer A saying she could not understand why the noise recorded was not a statutory noise nuisance. Ms X asked for copies of the noise recordings.
  17. Ms X chased the Council for a response to her Stage 1 complaint on 26 February 2021.
  18. Officer A provided Ms X with copies of the recordings on 3 March 2021. Ms X responded to Officer A to advise she could hear the children banging during the recording and asked why this was not a noise nuisance.
  19. Ms also chased the Council for a response to her Stage 1 complaint on 4 March 2021. The Council advised it had passed the complaint over for investigation and it would respond shortly.
  20. Officer A responded to Ms X’s email of 3 March 2021 on 8 March 2021. Officer A advised she could hear the banging but also had to consider the time of day, duration, frequency and type of noise when considering if a noise recorded was a statutory noise nuisance.
  21. Officer A also liaised with Ms X’s neighbour about the noise nuisance complaint to advise that while no statutory noise nuisance had been found the complaint was ongoing.
  22. The Council sent its Stage 1 complaint response to Ms X on 11 March 2021. The Council:
    • Apologised to Ms X for not responding within the complaint timescales.
    • Said it took longer than normal for Officer A to analyse the noise recordings because of the number of recordings on the device.
    • Said Officer A could not prove a statutory noise nuisance from the recordings.
    • Had discussed the matter with Officer A who advised she did not mean to be dismissive of Ms X. The Council said Officer A had tried to explain how noise nuisance was recorded and analysed.
    • Offered Ms X further monitoring equipment and asked is Ms X wished to proceed with this.
  23. Ms X responded to the Council’s Stage 1 complaint response and queried the benefit of further noise recording equipment since the Council had dismissed the noise recorded previously. The Council told Ms X extra recordings would add further evidence and could also show any difference in noise nuisance from December 2020 compared to now.
  24. Ms X agreed to further noise recording but asked for someone other than Officer A to deal with her complaint. Ms X also asked to go to Stage 2 of the Council’s complaints process on 12 March 2021.
  25. Ms X chased the Council for a response to her request for further noise recording and a response at Stage 2 of the complaint process.
  26. A new council officer, Officer B, contacted Ms X on 26 March 2021 to offer installation of a different piece of noise recording equipment into her property. Ms X agreed for Officer B to install this on 13 April 2021.
  27. Ms X contacted the Council’s complaint department again on 11 April 2021 to chase a response to her complaint. Ms X complained about:
    • The response timescales from the Council and failure to respond to her escalation request on 12 March 2021.
    • Failure of the Council to remove Officer A from her case.
    • The inconsistent information provided by Officer A and lack of apology for her actions.
    • Officer A’s decision the noise nuisance was not a statutory noise nuisance.
  28. The Council confirmed it would respond to Ms X’s complaint at Stage 2 and promised to do so within 20 working days.
  29. Officer B installed the new noise recording equipment into Ms X’s property on 13 April 2021. Officer B attended Ms X’s property again on 16 April 2021 to replace the memory card following contact from Ms X advising the memory card was full.
  30. Officer B removed the noise recording equipment on 20 April 2021. Both Officer A and Officer B listened to the noise recordings on both memory cards on 30 April 2021. Both officers decided that while they could hear noise a statutory noise nuisance did not exist. This was because the noise was not at a volume, duration or frequency to be a statutory noise nuisance.
  31. The Council provided its Stage 2 complaint response to Ms X on 7 May 2021. The Council said:
    • It apologised for not responding to Ms X within the complaint timescales.
    • It also apologised for the delay in completing the noise recording analysis in December 2020 and January 2021.
    • It had agreed for a different officer to take over Ms X’s second noise nuisance complaint which it was reviewing.
    • It had already apologised within the Stage 1 complaint response if the way the Council handled the complaint left Ms X feeling “less than satisfied or valued”.
    • It had reviewed the correspondence between Ms X and Officer A and Officer A had told Ms X she could hear the noise nuisance but this was not a statutory noise nuisance.
    • The Council had used correct equipment in Ms X’s property to monitor noise nuisance. The Covid-19 pandemic had impacted on the ability of the Council to conduct home visits so it was favouring use of monitoring equipment.
    • While Ms X may not agree with Officer A’s assessment of the noise recording it was completing a second assessment to see if the statutory noise nuisance threshold was met.
    • It had a responsibility to investigate noise nuisance complaints and reach a decision based on the facts. It could only take court proceedings where prosecution would be of public interest where there is a likelihood of success.
    • It would provide its determination of the second noise recording analysis shortly.
  32. Officer B wrote to Ms X on 10 May 2021 to provide the result of the analysis of the second noise recording in April 2021. Officer B advised they could hear the noise on the recordings but it did not constitute a statutory noise nuisance because of the nature, time of day, duration and level of the noise. Officer B advised the Council could not take action, but Ms X could take her own legal action against her neighbours if she wished.

Analysis

Statutory noise nuisance investigation

  1. Ms X complained the Council dismissed her complaints about noise nuisance from her neighbours.
  2. Ms X made her first formal complaint to the Council on 7 September 2020. The Council’s policy says it will start an investigation into a noise nuisance complaint within seven working days of receipt. The Council’s policy also says it may provide a person with log sheets to complete to detail the noise nuisance experienced.
  3. The Council contacted Ms X on 10 September 2020 and provided log sheets on this date. The Council picked up the complaint within seven working days and took the first steps at investigating Ms X’s complaint. The Council acted in line with its policy, I do not find fault.
  4. In response to Ms X’s complaint, the Council contacted Ms X’s neighbours. The Council discussed the complaint with Ms X’s neighbours in the first instance and tried to find an informal solution to the noise nuisance issues. The Council again acted in line with its policy, and I do not find fault.
  5. Ms X asked for installation of noise monitoring equipment on 3 October 2020. The Council took two months to install this noise recording equipment. It is not always possible for a Council to always have noise recording equipment available. The Council may be using this equipment for another person’s complaint. While a two-month delay in installing noise recording equipment is not ideal, I do not find fault with this delay.
  6. The Council also followed the next steps of its policy and installed noise recording equipment when its informal attempt the resolve the noise nuisance failed. The Council acted in line with its policy, and I do not find fault.
  7. Officer A listened to the noise recordings and decided the noise was not a statutory noise nuisance. Since Ms X disputed Officer A’s decision, the Council installed a different noise recording device to get new noise recordings. A different officer, Officer B, with Officer A, listened to the recordings taken from this second device and reached the same decision that the noise recorded was not a statutory noise nuisance.
  8. The Council has taken two separate spells of recordings of the noise nuisance caused by Ms X’s neighbours. The Council has used different noise recording devices and different council officers have listened to the recordings. On both occasions, the Council found no statutory noise nuisance.
  9. The Ombudsman cannot question a professional decision when there is no evidence of fault in how it was made, unless it is considered unreasonable. The test for ‘reasonableness’ in administrative law is very strict. The courts have held that a decision made by a public body or its officers will only be unreasonable if it is ‘So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’ (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948])
  10. In the circumstances of Ms X’s complaint, I consider the Council has given suitable opportunity to try to evidence a statutory noise nuisance at Ms X’s property. The Council has used different devices and had different officers listen to the recordings. There is no evidence the Council officer’s decisions were unreasonable and I cannot therefore question their decisions.
  11. Since the Council could not prove a statutory noise nuisance it could not take any formal enforcement action against Ms X’s neighbours. The Council told Ms X on both occasions that it could not determine a statutory noise nuisance and therefore could take no further action. The Council acted in line with its policy, and I do not find fault.

Complaint handling

  1. Ms X also complained about the Council officer’s handling of her noise nuisance complaint. Ms X says the Council officer provided incorrect and inconsistent information and provided poor service through her attitude and delays in responding to her contacts. Ms X also complained the Council did not take her complaint seriously.
  2. As detailed in paragraphs 54 to 57 I do not find fault with how Officer A acted up to installation and removal of the first noise recording equipment.
  3. On removal of the noise recording equipment, Officer A advised Ms X it would take longer than normal to review the noise recording because of the volume of recordings. I consider Officer A acted correctly to provide an update to Ms X on 23 December 2020 and I do not find fault.
  4. However, Officer A promised to provide the analysis of the noise recordings by the start of January 2021 to Ms X. Officer A failed to contact Ms X to either provide an update or the result of her analysis of the noise recordings until 29 January 2021. Officer A failed to meet the timescales she set, this is fault.
  5. While this is fault, the Council already apologised for this delay in both the Stage 1 and Stage 2 complaints. I do not consider the Council needs to take further action to address this.
  6. Officer A engaged with Ms X in discussions over the noise recordings in February 2021 and March 2021. I have reviewed these contacts and do not consider Officer A was dismissive of Ms X’s complaint. Officer A listened to the specific times Ms X detailed and was consistent in her stance that she did not consider there was a statutory noise nuisance. I do not find fault with how Officer A handled the noise nuisance complaint.
  7. Even if I did find fault, the Council has also apologised in its Stage 1 response if Officer A made Ms X feel unvalued or if Ms X was unsatisfied with the service. The Ombudsman would not consider anything more than an apology would be suitable in the circumstances.
  8. Ms X raised a formal Stage 1 complaint with the Council on 3 February 2021. Within this Stage 1 complaint response Ms X asked that Officer A no longer handled her noise nuisance complaint. The Council failed to respond to Ms X’s Stage 1 complaint until 11 March 2021. This is six working days over the Council’s complaint response timescales. Failure to meet the complaint timescales is fault.
  9. However, the Council apologised to Ms X within the Stage 1 response about the failure to meet the timescale. The Council also arranged for Officer B to take over Ms X’s noise nuisance complaint moving forwards and offered Ms X noise monitoring equipment again. I consider the Council took appropriate action to address Ms X’s concerns at the Stage 1 complaint stage.
  10. Ms X raised a formal Stage 2 complaint with the Council on 12 March 2021. Again, the Council did not respond in the complaint timescales and only responded on 7 May 2021, 20 working days outside the complaint response timescales.
  11. The Council apologised for this further delay within its Stage 2 complaint. The Council’s Stage 2 complaint also provides a comprehensive response to Ms X’s complaint to the Council. The Council has addressed all the concerns Ms X raised and I do not find fault with the contents of the response.
  12. The Council has delayed in responding to Ms X’s complaints within the timescales set out in its complaint procedure and delayed in completing the analysis of the noise recordings taken at Ms X’s property. However, I do not consider this caused Ms X a significant personal injustice. The is because the Council found no statutory noise nuisance existed and the Stage 2 complaint response by the Council was an appropriate response to Ms X’s complaint. The Council has apologised to Ms X for the delays and the Ombudsman asking the Council to do this again would not add to this.

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Final decision

  1. I have completed my investigation as there is no evidence the fault by the Council has led to a significant injustice to Ms X.

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Investigator's decision on behalf of the Ombudsman

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