Summary: Mrs V complains the Council has failed to investigate her complaints relating to noise and anti-social behaviour by her neighbour. She adds that this has meant she has lost the benefit to use and enjoy her property. We found the Council failed to investigate Mrs V’s noise complaint, as legally required to do so. Further, there is no evidence the Council considered its legal obligations to investigate and reduce anti-social behaviour in Mrs V’s community. These failings have caused Mrs V an injustice and the Council has agreed to our recommendations to remedy this.

The complaint

1. The complainant, who I refer to as Mrs V, is a private tenant and alleges that her neighbour is creating a noise nuisance and demonstrating a pattern of anti-social behaviour against her. Mrs V says she has complained to Birmingham City Council (the Council) about these matters since March 2020, yet believes the Council has failed to take appropriate action against her neighbour. Specifically, Mrs V alleges the following:
1. The Council failed to properly investigate her noise complaint and take appropriate action in response to the evidence of a noise nuisance.
2. The Council failed to investigate anti-social behaviour by her neighbour.
3. The Council lost evidence she provided to the Council concerning her complaint and so failed to consider this.
2. Mrs V says the Council’s failings have meant her neighbour’s conduct has gone unabated. She explains this has meant that she has lost the use and enjoyment of her property. As a desired outcome, Mrs V wants the Council to investigate her complaints and take action to stop her neighbour’s conduct.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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).
5. We cannot question a council’s decision 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).
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

7. I have reviewed Mrs V’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, supporting documents and applicable legislation. I invited both Mrs V and the Council to comment on a draft of my decision. Their comments were fully considered before a final decision was made.

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My findings

Background and legislative framework

Noise nuisance

8. A statutory nuisance is defined by the Environmental Protection Act 1990 (“the EP Act 1990”) and can include noise disturbances. For noise to be a statutory nuisance, it must either unreasonably and substantially interfere with the use or enjoyment of a home or other premise; injure health or be likely to injure health.
9. Councils have a legal duty to investigate noise complaints. Where they are satisfied a statutory nuisance exists, they are required to serve an abatement notice, that is, an instruction to cease, or minimise, the disturbance. Whether a statutory nuisance exists is for a professionally qualified Environmental Health Officer to decide following a period of investigation.

Antisocial behaviour (ASB)

10. Section 2 of the Anti-Social Behaviour, Crime and Policing Act 2014 (the 2014 Act) 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.”
11. Section 17 of the Crime and Disorder Act 1998 places a statutory duty on named partners (including local authorities) to consider the reduction of crime and disorder when exercising their core functions.
12. The 2014 Act also created six new powers to tackle anti-social behaviour. Of these, four are directly available to councils, which include:
1. the power to issue community protection notices (CPN);
2. the power to make a public spaces protection order (PSPO)
3. the power to close premises for a specified period of time; and
4. the power to apply to the courts for a civil injunction.

Chronology of events

13. In April 2020, Mrs V made a noise complaint to the Council in relation to her neighbour. The Council logged the complaint the same month and arranged to send Mrs V diary sheets so that she could record the noise disturbances.
14. Moreover, the Council’s records show that it closed Mrs V’s case in accordance with its procedure pending her responding with completed diary sheets.
15. Between April and September 2020, Mrs V contacted the Council on several occasions to complain in respect of the noise. Mrs V says she also provided the Council the completed diary sheets to evidence the noise in June 2020. Mrs V also sent the Council additional evidence, including witness statements and photographs of noise recordings.
16. In mid-September 2020, Mrs V contacted the Council to express concern that her noise complaint had not been resolved. She also referenced her past emails, documents and noise recordings sent to the Council had not been responded to. The Council’s records demonstrate it had no record of this.
17. In early November 2020, the Council undertook to contact Mrs V in respect of her complaint and reopen the noise complaint where necessary to do so.
18. In late-November 2020, Mrs V provided the Council updated diary sheets from July to November 2020 which recorded the noise disturbances. She also provided witness statements from her landlord and another neighbour. Separately, Mrs V acknowledged the noise had entered a quiet period and queried whether the Council would now install noise monitoring equipment.
19. Days later, the Council responded that it would install noise monitoring equipment once Mrs V had completed and returned diary sheets. Further, the Council told Mrs V that if there was no noise disturbances at present, she did not need to provide the completed diary sheets and it would not progress to an investigation.
20. In February 2021, Mrs V contacted the Council to understand what information and evidence she had provided to support the existence of a noise nuisance. There is no evidence the Council responded to Mrs V’s contact.
21. In April 2021, Mrs V submitted a formal complaint to the Council. She said that since April 2020, she had raised a number of noise complaints with the Council relating to her neighbour. Mrs V added that she had complied with the Council’s requests and provided noise diary/records, witness statements and recordings of the noise. However, she says the Council did not taken any action against her neighbour, with the exception of sending her neighbour a letter.
22. In addition, Mrs V acknowledged that the noise from her neighbour does sometimes stop, though repeats itself within a matter of weeks. She said she had reported the matter to the police which explained the problem was a civil matter and not criminal one. Mrs V therefore continued to contact the Council.
23. In early May 2021, a Council officer contacted Mrs V to discuss her complaint. The officer noted that Mrs V was no longer experiencing noise issues from her neighbour and invited her to make a complaint again should this change in the future. That said, the officer acknowledged Mrs V’s noise complaint had not been addressed as it should have in the past. The Council also said there may have been a noise nuisance last year and it does not appear to have done all it could.
24. In addition, the Council officer noted Mrs V may be experiencing problems of antisocial behaviour from her neighbour. The officer explained however that the Council previously felt this was not something it could assist with. The officer agreed to make enquiries of the Council’s anti-social behaviour team. The Council later acknowledged there could have been better contact between its relevant teams in responding to Mrs V’s allegations on this issue.
25. Some days later, Mrs V responded to the Council explaining her neighbour’s conduct was a pattern of behaviour. She requested the Council consider the evidence she had provided and investigate the issues.
26. In mid-May 2021, Mrs V contacted the Council again to inform it had not investigated her noise complaint. She also raised issues of anti-social behaviour and the Council sent Mrs V details of its anti-social behaviour team.
27. Days later, Mrs V escalated her complaint to Stage Two of the Council’s complaints process. The Council responded advising it had already provided her with details of its anti-social behaviour team. It therefore closed Mrs V’s case.
28. In addition, Mrs V complained to the Council’s anti-social behaviour team and detailed her concerns in writing. In response, the Council sent Mrs V information relating to mediation by a third party which cost £300 plus VAT.
29. In June 2021, Mrs V made a further noise complaint to the Council and provided diary sheets which covered the period from October 2020 to June 2021.
30. At present, Mrs V has said the noise disturbances from her neighbour have stopped. However, she says that anti-social behaviour has become the primary issue with her neighbour and that there is a police inquiry active.

My assessment

Noise complaint

31. By law, the Council has a legal duty to investigate all noise complaints. It is Mrs V’s position that the Council has failed to do so. I have reviewed Mrs V’s complaints and correspondence to the Council, as well as how the Council considered and responded to the issues raised. Importantly, the Council acknowledge that Mrs V’s noise complaint was not handled well in the early stages. However, it is my view the Council failed to properly investigate Mrs V’s noise complaint, as legally required to do so. I will explain why.
32. The evidence suggests that when Mrs V first complained to the Council, it sent her diary sheets to complete and closed her complaint pending the return of these. Mrs V says she returned these in June 2020 and yet the diary sheets were not considered which led to her contacting the Council frequently for updates. The Council acknowledge there were delays in responding to Mrs V and so I find the Council was at fault for not providing a timely service.
33. Further, the Council dispute receiving completed diary sheets in June 2020. However, I have seen evidence Mrs V has consistently completed diary sheets on the Council’s requests. Further, an Environmental Health Officer appears to have acknowledged earlier evidence sent by Mrs V when it contacted her in November 2020. I have also not seen any record that any evidence provided by Mrs V was considered by the Council in order to make a determination on the complaint. The Council also acknowledge it failed to maintain a record of analysis of evidence, actions and conversations held with Mrs V. On the balance of probabilities, I consider it was more likely than not that Mrs V sent the Council completed diary sheets in June 2020 and these were not considered. I find the Council was at fault for this, as well for failing to maintain an accurate record of evidence and its analysis to inform an accurate and reliable outcome.
34. The Council has also said that it was not possible to properly investigate the issues raised, because Mrs V said the noise entered quiet periods. I do not accept the Council’s explanation that because the noise stopped at periods that this prevented it from undertaking an effective investigation. In my view, the Council failed to consider Mrs V’s evidence and take necessary action to explore the circumstances further, such as installing noise monitoring equipment. This would have enabled the Council to collect additional evidence of noise disturbances when these occurred. In effect, Mrs V was left to start the process again. This was a direct consequence of the Council’s failure to properly investigate Mrs V’s noise complaint since she first complained in April 2020.
35. In April 2021, Mrs V complained to the Council in respect of the Council not taking action in response to her noise complaint. This led the Council to consider the evidence it had received from Mrs V. The Council said it had reviewed what had happened over the last 12 months and noted that noise had not been a problem for Mrs V since January 2021. The Council concluded that it could not take action in relation to noise which had occurred in the summer the previous year without evidence. It also emphasised that evidence needed to be provided by Mrs V in a timely manner and that it had never established the existence of a nuisance.
36. I have reviewed the correspondence between Mrs V and the Council. It is factually inaccurate for the Council to suggest there has been any delay by Mrs V in providing the requested evidence in the form of diary sheets. This is because evidence, including the completed diary sheets, was provided by Mrs V in June 2020 and November 2020 which detailed noise disturbances over this period. I also reject the Council’s point that noise had not been an issue for Mrs V since January 2021 as this is entirely inconsistent with the evidence provided, as well as Mrs V’s correspondence with the Council.
37. In June 2021, Mrs V made a further noise complaint to the Council and provided additional diary sheets which covered the period from October 2020 to June 2021. In response, the Council asked Mrs V to complete further diary sheets and sent these to her. Again, I consider the Council’s response to Mrs V to be entirely inadequate. Further, there is no evidence to suggest the diary sheets which covered the period since Mrs V first raised her complaint had been considered. In my view, the Council had ample time and evidence to consider investigating the noise complaint in further detail through noise monitoring equipment and yet it failed to do so. I therefore consider the Council failed to investigate Mrs V’s noise complaint in the later stage of her complaint, as well as the early stages.
38. In addition, there is no evidence the Council provided a written outcome of its investigation to Mrs V. I therefore find the Council was at fault for this.

Lost evidence

39. I have found no evidence the Council lost the evidence provided by Mrs V to demonstrate either a noise nuisance or anti-social behaviour. I have been provided email correspondence which clearly demonstrates that Mrs V supplied vast evidence, above and beyond that requested by the Council. Rather, the evidence shows the Council failed to properly consider the information provided by Mrs V, maintain effective contact with her and put in place a plan to investigate the issues raised. When Mrs V made a formal complaint in relation to the Council’s lack of action, it subsequently reviewed the evidence to date and decided it could no longer rely on this due to it being out of date. The Council was at fault in this respect which in turn led to the overall failure to investigate the noise complaint, as detailed above.

Anti-social behaviour allegations

40. In May 2021, Mrs V raised additional concerns to the Council concerning her neighbour’s alleged anti-social behaviour. The Council confirm it received only one complaint of anti-social behaviour and this focussed on Mrs V’s neighbour allegedly taking a photograph of her daughter. Concerns also focused on the neighbour’s use of CCTV. The Council confirmed to me it had contacted the police in June 2021 to discuss the issues and was informed police attended the previous month and found no evidence of anti-social behaviour.
41. Importantly, Mrs V contacted the Council’s anti-social behaviour team in June 2021 which detailed additional allegations against her neighbour. This included allegations of her neighbour following and recording members of Mrs V’s family and being verbally abusive. Mrs V has told me that the police are continuing to make enquiries in relation to the allegations.
42. Councils have some legal responsibility in investigating allegations of anti-social behaviour and have specific powers to reduce such conduct in their communities (see Paragraph 10 to 12). On receipt of Mrs V’s allegations, I would expect the Council to assess whether the allegations were legitimate and what risk they posed. The Council has explained that it received notification in June 2021 that the police did not intend to take action in respect of the allegations. However, because the police do not propose to take action on a criminal basis (which makes decisions on reasonable doubt) does not prevent the Council from taking action on a civil basis (which makes decisions on the balance of probabilities). I would still expect the Council to give consideration to its responsibility, which is independent from the police, in reducing anti-social behaviour in the community.
43. I have not seen evidence the Council has properly considered its legal responsibility and the specific powers it has to investigate Mrs V’s allegations. In my view, the Council satisfied itself it did not need to take action given the police confirmed it did not propose to take any action at the time. It should also be noted that Mrs V says the police are currently undertaking an inquiry into the allegations. I therefore find the Council was at fault in failing to properly address Mrs V’s concerns insofar as they relate to anti-social behaviour allegations.

Injustice to the complainant

44. Importantly, I cannot say the allegations of noise or anti-social behaviour are well founded. Only the Council can make that determination with its officers exercising their professional judgement. However, the Council failed to investigate Mrs V’s noise complaint and consider its responsibility of investigating and reducing anti-social behaviour. These failing caused Mrs V and her family extreme distress and uncertainty over an extended period of time. This is because she has not been able to progress her concerns to a resolution which the Council should have assisted her in doing. I therefore consider that Mrs V has suffered a significant and personal injustice and I fully uphold her complaint.

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Agreed action

45. To remedy the fault(s) and injustice identified in this statement, the Council has agreed to take the following actions:
1. Within one month of a final decision, the Council will provide a written apology to Mrs V which acknowledges the fault(s) and injustice identified.
2. Within one month of a final decision, the Council will pay Mrs V £500 to acknowledge the distress, uncertainty and time and trouble she has suffered.
3. Within three months of a final decision, the Council will undertake a review of Mrs V’s case to identify why her noise complaint was delayed and not investigated. The review will focus on identifying service improvements to be implemented for the benefit of the Council’s customers in the future.
4. Within three months of a final decision, the Council will make contact with Mrs V to discuss her concerns relating to anti-social behaviour by her neighbour. The Council will consider Mrs V’s allegations and any evidence she provides. It will also consider its legal obligations relating to investigating such concerns and provide a written decision relating to any steps it proposes to take.
46. The Council will provide evidence it has complied with the recommended actions within three months of a final decision.

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Final decision

47. The Council failed to investigate Mrs V’s noise complaint, as legally required to do so. In particular, the Council failed to respond to Mrs V in a timely manner, consider her evidence and provide a reasoned outcome to her. Further, there is no evidence the Council considered its legal obligations to investigate and reduce anti-social behaviour in Mrs V’s community. These failings caused Mrs V an injustice and the Council has agreed to remedy this.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman