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Sheffield City Council (21 002 360)

Category : Environment and regulation > Antisocial behaviour

Decision : Not upheld

Decision date : 06 Dec 2021

The Ombudsman's final decision:

Summary: Mr X complains about the way the Council responded to his complaints of anti-social behaviour and noise nuisance caused by a neighbour. We have found no evidence of fault in the way the Council considered these matters so have completed our investigation.

The complaint

  1. I have called the complainant Mr X. He complains there were failings in the way the Council dealt with his complaints of anti-social behaviour (ASB) from his neighbour Mr Z and a request for a Community Trigger review.
  2. Mr X also complains about the way the Council issued Mr Z with a Community Protection Notice Warning and Notice but decided not to defend Mr Z’s appeal against the Notice in court. Mr X says the Council’s actions have caused distress to himself and his partner Ms Y, and it has not resolved the anti-social behaviour they are still experiencing.

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What I have investigated

  1. I have investigated Mr X’s complaints about the way the Council responded to his complaints of ASB caused by Mr Z and especially its response to his concerns about noise nuisance. I have not investigated Mr X’s complaints about the Council’s response to his Community Trigger review request and its decision not to defend an appeal against a notice. I have explained my reasons for not investigating these issues within the decision statement. I have provided information about the Council’s response to the Community Trigger review request and court action to provide background and context to Mr X’s complaints.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  3. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the police or social housing providers. We also cannot investigate the actions of partnership bodies, such as Community Safety Partnerships, which include members we cannot investigate. (Local Government Act 1974, sections 25 and 34A, as amended)
  4. 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)
  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

  1. I have read the papers submitted by Mr X and spoken to him about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
  2. Mr X 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

Relevant law and guidance

  1. The law defines anti-social behaviour as:
      1. conduct that has caused, or is likely to cause, harassment, alarm, or distress to any person,
      2. conduct capable of causing nuisance or annoyance to a person in relation to that person's occupation of residential premises, or
      3. conduct capable of causing housing related nuisance or annoyance to any person.

(Anti-Social Behaviour, Crime and Policing Act 2014, section 2)

  1. The law places a general duty on councils to take action to combat anti-social behaviour (Crime and Disorder Act 1998, section 17) . This includes making enquiries and considering whether to exercise their legal powers to take action.
  2. Where a council decides noise complained about amounts to a statutory nuisance it should serve an abatement notice. This requires the person responsible to stop or restrict the noise. (Environmental Protection Act 1990, section 80)
  3. Councils can use community protection notices (CPN) to prevent anti-social behaviour which is having a detrimental effect on the community’s quality of life and is considered unreasonable. CPNs require the behaviour to stop and, where appropriate, require reasonable steps to be taken to ensure it is not repeated. Councils must send a written warning before issuing a CPN.

Anti-social behaviour case reviews

  1. The Anti-social Behaviour, Crime and Policing Act 2014 introduced the right for victims of anti-social behaviour (ASB) to ask for an ASB case review. This is a formal review by relevant local bodies into the actions taken to deal with reports of anti-social behaviour. These reviews are also known as the ‘Community Trigger’.
  2. The bodies collectively responsible for ASB case reviews, often referred to as Community Safety Partnerships, are:
    • the local council;
    • police;
    • NHS Clinical Commissioning Groups; and
    • social housing providers chosen to be part of the group.
  3. The relevant bodies in each area must set threshold criteria for starting a review. If someone asks for an ASB case review the relevant bodies must decide whether the application meets the threshold and, if so, undertake a case review. If someone disagrees with a decision not to hold a case review, they can ask the relevant bodies to review the decision.
  4. Relevant bodies must also publish details of the local review process.

Sheffield local policy

  1. The ASB case review threshold (Community trigger) in the Council’s area says it considers both the nature of the reported incidents and the number of incidents experienced. A review will be undertaken if:
    • it caused the person harassment, alarm, or distress.
    • the person has reported 3 separate incidents relating to the same (or similar) issue within a 6- month period. the most recent incident needs to be not more than a month old.
    • Or if 5 different households have separately reported the same issue within a 6-month period, the Community Trigger threshold has also been met.

Key Events leading to the complaint

  1. Mr X and his partner Ms Y live next door to Mr Z. They occupy semi-detached houses and share a party wall. In January 2020 Mr X and Ms Y sent a Community Trigger request form to the Police about Mr Z. They referred to harassment from him, barking from his dogs causing a nuisance, smells from dog faeces left in Mr Z’s garden, domestic noise and installing a CCTV camera pointing at their property. They also reported Mr Z driving a car without a MOT and insurance.
  2. The Police referred the request to the Council for the Safer Neighbourhood Service (SNS) to consider. The SNS is the Community Safety Partnership for the area. The SNS acknowledged the request and said it would determine and agree if it met the threshold for a Community Trigger.
  3. The SNS wrote to Mr X about the request and explained it had been reviewed by partner agencies working together to tackle ASB. The SNS were aware the matter had been going on for some time with several people and agencies involved trying to find a solution. The SNS outlined action taken by the Police, but they found a lack of evidence to support Mr X and Ms Y’s concerns. The SNS explained the Council’s actions taken by its Environmental Protection Service (EPS). This was to:
    • Installed Noise monitoring equipment (NME) in 2019 (and on previous occasions) to investigate the complaints of noise from dogs and dog nuisance and from domestic noise. The EPS found no evidence of a statutory noise nuisance and Mr X did not accept the offer of further monitoring at that time.
    • The Council erected ‘no fouling’ signs near the properties. Officers carried out regular patrols to try and gain evidence but were unsuccessful.
    • Regular contacts and three home visits by EPS officers.
    • Offered mediation to Mr X which had not been accepted, but the offer remained open.
  4. The SNS told Mr X the request did not meet the threshold and the issues reported managed properly by the agencies concerned. The SNS explained the right to appeal against the decision.
  5. Mr X and Ms Y asked an ASB charity to help represent them. The charity helps organisations review their procedures for ASB complaints and had already been in contact with the Council. The Council agreed to meet with the charity to discuss the case but had to postpone due to the COVID-19 pandemic.
  6. The Council told Mr X it was not installing NME due to the risks to officers and customers but had written to Mr Z about the complaints. Mr Z refused to engage with the Council. Mr X sent in further evidence of issues with noise. This led the Council to believe there was on the balance of probabilities, a likelihood of a statutory nuisance from barking dogs at Mr Z’s property.
  7. The Council opened an ASB call to be dealt with by the SNS. The SNS met with the charity in May and June 2020 to discuss the case. It agreed to the following actions:
    • Mr X to continue to send in incident logs and to try shuttle mediation
    • Noting a possible vermin issue at Mr Z’s property due to its poor condition and overgrown rear garden.
    • To contact Mr Z to offer support.
    • The police to investigate the issues with Mr Z’s vehicle.
    • To consider serving a CPN warning to Mr Z based on noise nuisance from music and animals, accumulation of dog faeces, condition of the property, banging and causing a noise nuisance at unsocial hours, using insulting and abusive words or behaviour, and throwing or discarding items into other properties.
  8. The SNS arranged a further Community Trigger review meeting for September 2020.
  9. Mr X sent more noise diaries in June 2020. The Council considered these supported the view Mr Z was causing a likely nuisance and unsuccessfully tried to contact Mr Z to arrange a visit to his property. The SNS held a meeting with the charity, and all agreed to serve Mr Z with a CPN warning.
  10. The Council held a case discussion in July about the noise caused by Mr Z. It agreed to send a pre–Abatement Notice warning to Mr Z as there was likely evidence of a statutory noise nuisance. Mr Z refused to engage with the Council, so it issued an Abatement Notice (AN) in August 2020.
  11. The SNS met with the charity in June 2020, and all agreed to serve a CPN on Mr Z as he breached the CPN warning. Officers in the SNS prepared and issued the notice to Mr Z. The details of the conduct listed in the CPN were;
    • Loud noise from the property from music and multiple dogs barking and howling.
    • CCTV positioned to cause anxiety and harassment to persons beyond the property boundary.
    • The condition of property and garden
    • Reports of being abusive to others.
  12. The Council says the aim of both the CPN and AN were to offer some legally enforceable protection to Mr X and Ms Y for the ASB. But there was a large overlap between the requirements of the CPN and AN in addressing the issues caused by Mr Z’s dogs barking which was the major issue.
  13. The SNS held a meeting with the charity to discuss the matter in August 2020. It discussed the CPN, the issue with CCTV and noted a strong smell of dog faeces at the property from walk by visits. The SNS said the night-time noise teams service was now available to Mr X. The SNS noted the Council did not find the appearance of Mr Z’s property met the requirements for action under planning legislation. The SNS noted the Council could not prosecute Mr Z until after the time he had the right to submit an appeal ended. However, Mr Z appealed to the magistrates’ court against both notices.
  14. The SNS held a meeting in September 2020 which was the date previously arranged to review the Community Trigger and drew up an action plan. This included writing to Mr Z about the rats at the property, the EPS night service and daytime officers to do roadside assessments of noise and an inspection of Mr Z’s property when COVID-19 restrictions lifted. The SNS noted difficulties in finding solutions while waiting for the appeal hearings and updated Mr X.
  15. In December the court agreed to hear Mr Z’s appeals against the CPN and AN and set a date for March 2021. The Council continued to collect the weekly ASB logs from Mr X and told him to continue to report any issues.
  16. The Council sought legal advice about Mr Z’s appeal which advised it to defend the AN but not the CPN. In March 2021 the magistrates court upheld Mr Z’s appeal against the CPN but did not uphold the AN appeal. Mr Z appealed the decision about the AN to the crown court.
  17. The Council explained its decision about the CPN to Mr X because of its legal advice. This considered Mr Z had a strong chance of winning the appeal. So, the Council decided not to defend the claim due to concerns about the enforceability of the CPN and the way some ‘prohibitions’ were drafted. The Council apologised for any concerns it caused Mr X and explained it did consider the potential impact not defending the claim may have on him. But it decided there were alternative powers it could use to address any further incidents he reported. The Council said the AN remained in force. The Council said the SNS had learnt from the legal advice on the case and would improve the quality of future CPN’s. The Council apologised to Mr X he was not given more information about its decision.
  18. The Council held a SNS meeting in March 2021 and decide to close the May 2020 ASB call in Mr X’s case. The Council considered the ASB issues resolved and nothing further for the team to do as Mr X and Mr Z were not Council tenants. The Council agreed EPS would continue to offer services to Mr X when required. It noted its planning service would address the issue with Mr Z’s property when lockdown restrictions eased. The Council closed the case.
  19. The crown court heard Mr Z’s appeal against the AN in August 2021 and upheld it so quashed the AN. The Council contacted Mr X and explained the court was complimentary about the Council’s case but considered Mr X’s evidence lacked independent verification. It explained it could not serve another AN without corroborated evidence if noise continued to be an issue. The Council could get this by installing NME or by Mr X ringing the service when noise happened.
  20. Mr X complained to the Council about the way it had dealt with the CT and court case. Mr X said there was continuing harassment, noise nuisance and ASB from Mr Z.
  21. The Council contacted the ASB charity in April 2021 for information on whether there was still an issue from Mr Z’s property. The charity said it considered Mr X and Ms Y were the victims of serious and persistent noise nuisance from Mr Z’s dogs before the SNS served the CPN. A charity worker had visited Mr X and Ms Y’s property in August 2020 and did not hear a noise or smell odour from Mr Z’s property. The worker also listened to Mr X’s noise recordings and looked at the noise logs but did not find anything to suggest there was now a serious and persistent noise nuisance. The worker said they could not say if there was still domestic noise from Mr Z.
  22. The charity recommended the Council assess the condition of Mr Z’s property once COVID-19 restrictions ended and make a further attempt to gather evidence of a noise nuisance from NME. The charity recommended the Police deal with the issue of the CCTV.
  23. The Council confirms it has acted on the recommendations by the charity. Its planning enforcement service looked at the condition of Mr Z’s property. But have considered it not appropriate to take action under planning legislation. A police officer has visited Mr Z’s property to look at the position and footage of the CCTV. The police officer considered the CCTV appropriately placed so needs to take no further action.
  24. The Council confirms it advised Mr X in August 2021 about the need to gain corroborated evidence if he considered there was still a noise nuisance. The Council says Mr X has not rung the service or requested NME. Mr X has advised the Council that noise is not currently a problem.

My assessment

Community Trigger and the Council’s decision not to defend the CPN at appeal

  1. The Council has explained how it considered the Community Trigger review request as part as its role within the SNS. The SNS decided to take action against Mr Z by issuing the CPN warning and then a notice itself. The actions and decision were taken by the SNS acting as the Community Safety Partnership. So, although the Council was involved in the SNS it is not something we can investigate as paragraph five explains. This is because the membership of the Community Safety Partnership includes members we cannot investigate.
  2. The CPN was considered by the courts. Mr Z appealed against the notice and the Council sought legal advice about defending the appeal. Based on the advice received it decided not to defend the appeal and focus on the AN. I acknowledge the decision not to defend the appeal was disappointing for Mr X and Ms Y, but the Council’s decision forms part of the conduct and commencement of court proceedings. As such it is not something we can consider as paragraph seven explains.

Abatement Notice

  1. As I cannot consider how the relevant bodies considered Mr X’s review request, I have restricted my findings to the actions of the Council when it was acting independently. This refers to its response to Mr X’s concerns about a noise nuisance. The evidence I have seen shows the Council responded to Mr X’s complaints about a noise nuisance and investigated. It decided to take action as it considered there was enough evidence on the balance of probabilities to show Mr X was suffering a statutory noise nuisance. The Council acted and served an abatement notice on Mr Z. The notice was upheld in the magistrate’s court. There is no evidence of fault by the Council in the way it responded to Mr X’s complaints of noise nuisance.
  2. Mr Z appealed against the notice and the appeal was upheld by the crown court. The Council considered there was enough evidence to support serving the AN, but the court decided otherwise. The decision to uphold the appeal was disappointing for Mr X but we cannot say that was fault by the Council.

Council action taken after the appeal

  1. The Council has provided evidence to show it has acted on the recommendations made by the ASB charity. Its planning enforcement service looked at whether it could take action under planning legislation to deal with the condition of Mr Z’s property. But it has decided such action is not appropriate. The police have investigated Mr X’s concerns about Mr Z’s CCTV, but consider it is positioned properly at the property.
  2. The Council has advised Mr X he can request NME or call its EPS if there is a noise issue, but Mr X has said there is currently not an issue. I do not consider there has been fault by the Council in responding to the situation after the appeal hearing. This is because it has investigated whether it can take further action under planning and environmental health legislation and the evidence shows there is nothing more it can do at the moment. It is now open to Mr X and Ms Y to contact the Council should there be any noise issues in the future.

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Final decision

  1. I am completing my investigation. I have found no evidence of fault by the Council in the way it responded to Mr X’s concerns of ASB, and noise nuisance caused by a neighbour.

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Investigator's decision on behalf of the Ombudsman

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