Summary: Miss C said the Council was at fault for the way in which it investigated a complaint about antisocial behaviour made against her by a neighbour. The Council was not at fault. It received a complaint and investigated it, as it was required to do.

The complaint

1. The complainant, who I have called Miss C, says the Council is at fault for the way in which it investigated allegations of noise nuisance and antisocial behaviour made against her household by her neighbour. She says the Council:
1. Sent a letter to neighbours asking for information about her which was intrusive and may have led her neighbours to think badly of her, and
2. Discriminated against her.
2. Miss C says this fault has caused her injustice. She says it caused her stress which has exacerbated her incurable health condition.
3. Miss C says she would like the Council to tell her how long they intend to investigate her for as it is stressful. She would also like it to acknowledge that it has treated her unfairly.

Back to top

The Ombudsman’s role and powers

4. 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)
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)

Back to top

How I considered this complaint

6. As part of the investigation, I have considered the complaint and Ms C’s comments, made enquiries of the Council and considered the comments and documents the Council provided.
7. Miss C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

What should happen

Anti-social behaviour

8. On-going anti-social behaviour (‘ASB’) such as the inconsiderate making of noise may require intervention by councils, police and registered social landlords.
9. Section 17 of the Crime and Disorder Act 1998 places a duty on councils to take action to combat ASB. Councils will have a team to respond to and investigate complaints about ASB, liaising with the police and other agencies as necessary.
10. Councils can discharge this duty using informal intervention such as mediation. They can also use the Environmental Protection Act 1990 in the case of noise nuisance. In more serious cases, they can use powers derived from the Anti-Social Behaviour, Crime and Policing Act 2014.
11. The Council does not currently have an ASB policy but is working on producing one. It does, though, have standard processes it follows when dealing with allegations of noise and/or ASB.

What should a good ASB investigation look like?

12. There is no formal ‘process chart’ for an ASB investigation. Officers should handle each case according to its merits, with a mind to the severity of the alleged behaviour, whether it is frequent or ongoing, and the potential harm to the victims. However, we can expect a good investigation to have the following steps:

• Report received from complainant.
• Council investigates. In doing so, it addresses these questions: 
• Is this genuinely ASB?
• What risk does it represent to the complainant? Is there a significant threat of harm? Is the complainant particularly vulnerable. For example, are they elderly or disabled? Do they live alone with little or no support? (Ideally we would expect to see a formal risk assessment completed, although we not necessarily need to find fault if there was no specific ‘risk assessment’ document). 
• What is known of the alleged perpetrator(s)? Does the council have other records of ASB involving them, from this complainant or others? Has there been any social care involvement with the perpetrator(s)? Do they have their own vulnerabilities?
• What do other relevant bodies know about the situation? Have they received reports from this complainant or any other? If so, what action are they taking, and why?
• In particular, if the police have decided not to take action, what is the reason for this? Remember, the police will usually seek to prove something to the criminal standard (‘beyond a reasonable doubt’), but many of the council’s powers can be enacted on the civil standard (‘balance of probabilities’). The fact the police are not taking action does not mean the council cannot.
   
• Decide what action to take and implement it. This can legitimately be ‘none’, if the council considers it appropriate, although we should be able to understand clearly why this is. We should also consider whether officers have had a mind to the council’s wider powers and duties, and made a relevant referral if appropriate (to planning, ASC, children’s services etc.).
• Monitor. Has the action been effective? Is the complainant still reporting ASB? Does the council need to escalate its response? If it has served a notice, is the perpetrator following it? If necessary, return to steps 2 and/or 3.
• Close the case if the council is satisfied the matter is resolved. This does not necessarily mean the complainant must also be satisfied, of course, but if not, we should be able to understand clearly why the council has a different view.
• We are unlikely to see a council specifically label its steps in this manner. But we should expect its investigation to recognisably follow this pattern, and if not, consider whether any omission may have affected the outcome.

Noise nuisance

13. Complaints about noise are governed by the Environmental Protection Act 1990. On receiving a complaint about a noise nuisance, a council must investigate to see whether it amounts to a ‘statutory nuisance’. To do so, it must either:

• Unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
• Injure health or be likely to injure health.

14. The law says a statutory noise nuisance must be sufficient to cause distress to a person of normal sensitivity. A council officer will therefore visit to make an independent judgment as to whether the noise amounts to a statutory nuisance.
15. Many factors will affect the officer’s decision. They will consider the time and duration of any noise as well as its severity. They may ask complainants to keep a noise diary to help assess the impact on them. Councils may use sound measuring equipment though there is no statutory requirement to do so.
16. If a council decides a noise amounts to a statutory nuisance, it must serve an abatement notice requiring the perpetrator to stop. If it decides that the noise made does not amount to a statutory nuisance it can continue to use informal intervention to try to solve the problem.

The Equality Act 2010

17. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
18. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
19. The ‘protected characteristics’ referred to in the Act are:

• age,
• disability,
• gender reassignment,
• marriage and civil partnership,
• pregnancy and maternity,
• race,
• religion or belief,
• sex, and
• sexual orientation.

Public sector equality duty

20. The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:

• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010,
• Advance equality of opportunity between people who share a protected characteristic and those who do not, and
• Foster good relations between people who share a protected characteristic and those who do not.

21. The broad purpose of the public sector equality duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.

What happened

22. Miss C lives in private rented accommodation in the Council’s area. In August 2020, one of Miss C’s neighbours made a complaint about noise from Miss C’s property.
23. An environmental health officer wrote to Miss C in mid-August 2020 to tell her a complaint had been made. The letter said, “We recognise that not all complaints are justified and if that is the case with this one then please accept my apologies.”
24. The officer also wrote to the complainant and said they should fill in diary sheets, if the noise continued, setting out the nature of any disturbance, the times of day or night over a period long enough to establish a pattern.
25. The neighbour did not fill in the diary sheets and did not contact the Council again until mid-November 2020 when they told the Council that, since their initial complaint, the noise had not been so bad. They said though, that, recently, the noise had become worse.
26. The Council said it would begin an investigation. An officer spoke to Miss C on the phone. The Council wrote to Miss C saying it had received further complaints about noise. It said it would consider installing noise monitoring equipment and issuing a noise abatement notice if matters did not improve.
27. Miss C responded saying she had an illness which caused her pain and she sometimes made loud noises as a result. She also said that recording this would be discrimination and harassment and she would publicise this on social media.
28. Neighbours continued to complain about noise nuisance. In January 2021, the Council wrote to them and said it would install noise monitoring equipment in February 2021. It did so but, it seems, no noise incidents were recorded.
29. The records show that, not long afterwards, the frequency of noise and the nature of the noise coming from Miss C’s house changed. Neighbours feared Miss C was a victim of domestic violence. They also said Miss C had been aggressive and rude to them.
30. The Council wrote again to the neighbours asking for information about the allegations. It reinstalled the noise-monitoring equipment. This, again, provided no evidence of a nuisance. The file remains open but no noise abatement notice has been issued and no action has been taken against Miss C.

Was there fault causing injustice

Adequacy of investigation

31. The records show that the Council carried out a thorough, proportionate and sensitive investigation bearing in mind all relevant factors.
32. Miss C says the Council’s investigation caused her stress and she is concerned that her neighbours may think worse of her because of it.
33. The Council says it had a duty to investigate the noise nuisance and antisocial behaviour allegations and did so as it would have done any other complaint. It said, “We understand that being subject to a complaint can be somewhat distressing, but the Council is obliged to thoroughly investigate such complaints”.
34. This is correct. The Council had a duty to investigate the complaint and it did so. For that reason, I do not, therefore, find fault.

Disability

35. Miss C says the Council discriminated against her by recording noises she made because of her disability. The evidence shows that the Council investigated the allegation as it would have done against anyone. Insofar as it was aware that Miss C had a disability, the Council bore in mind its duties under the Equality Act and other duties as appropriate. I do not therefore find fault.
36. Miss C also says that when she told a Council officer the noise which the neighbours believed to be domestic violence were, noises she made because she was in pain, the officer told her to get better pain relief. The officer says this was a suggestion. Miss C says she felt it was insulting. There are no call recordings so I cannot know what was meant. I do not find fault.

Back to top

Final decision

37. I have decided that the Council was not at fault. I have closed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman