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.
- 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.
- 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.
What I have investigated
- 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.
The Ombudsman’s role and powers
- 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)
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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)
- 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)
- 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)
How I considered this complaint
- 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.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance
- The law defines anti-social behaviour as:
- conduct that has caused, or is likely to cause, harassment, alarm, or distress to any person,
- conduct capable of causing nuisance or annoyance to a person in relation to that person's occupation of residential premises, or
- conduct capable of causing housing related nuisance or annoyance to any person.
(Anti-Social Behaviour, Crime and Policing Act 2014, section 2)
- 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.
- 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)
- 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
- 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’.
- The bodies collectively responsible for ASB case reviews, often referred to as Community Safety Partnerships, are:
- the local council;
- NHS Clinical Commissioning Groups; and
- social housing providers chosen to be part of the group.
Sheffield local policy
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
Community Trigger and the Council’s decision not to defend the CPN at appeal
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
Investigator's decision on behalf of the Ombudsman