Summary: A complaint was made on behalf of Ms C who suffered disturbance from the occupier of a neighbouring flat, who moved into their property around November 2019. We found fault in the Council’s response from November 2020 onward, when it became aware of this matter. This was because the Council failed to carry out an adequate investigation or take actions it promised. This loss of a service caused injustice to Ms C as well as causing her unnecessary distress, time and trouble. The Council accepts these findings and at the end of this statement, we set out the action it has agreed to remedy this injustice.

The complaint

1. A complaint is made by ‘Mr B’ on behalf of ‘Ms C’. Mr B and Ms C co-own a flat in the Council’s area, where Ms C lives and works from. They say that since 2020 they have reported to the Council an ongoing disturbance from someone I will call ‘Ms X’ who lives in an adjacent flat. Their complaint is the Council has failed to take effective action to investigate or tackle that nuisance which is ongoing.
2. Ms C says the disturbance which takes the form of shouting and sometimes banging of objects, can occur at any time of day. It has frequently disturbed her ability to work or to sleep. Ms C also finds the content of Ms X’s shouting distressing. She says this combination of factors has had a negative impact on her health and wellbeing.

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The Ombudsman’s role and powers

3. 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)
4. 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. 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

6. Before issuing this decision statement I considered:

• Mr B’s written complaint to the Ombudsman and further information he provided by telephone and in emails; I also spoke to Ms C;
• information about the Council’s policies to tackle noise nuisance and anti-social behaviour available on its website;
• information provided by the Council in reply to written enquiries;
• relevant law and Government guidance as referred to in the text below; and
• relevant Ombudsman guidance including that on remedies and good administrative practice (both available on our website).

7. I also sent Mr B, Ms C and the Council a draft decision statement setting out my proposed thinking about the complaint. I took account of any comments they made in response, before issuing this final decision.

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What I found

Council powers to tackle statutory nuisances

8. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
9. A statutory nuisance can include noise from premises or vehicles, equipment or machinery in the street.
10. For the issue to count as a statutory nuisance, it must:

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

11. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for when nuisance occurs outside normal working time.
12. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
13. Councils can take formal action through the Courts to deal with statutory nuisances. But a council can also decide to take informal action if the issue complained about is causing a nuisance but is not a statutory nuisance. For example, they may write to the person causing the nuisance or suggest mediation.

Council powers to tackle anti-social behaviour

14. Councils have a general duty to take action to tackle anti-social behaviour (ASB). But ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation.
15. For example, they may approach a complaint:

• as an environmental health issue, where the complaint is about noise or pollution;
• as a planning matter, where the complaint is about an inappropriate use of a building or facility;
• as a licensing matter, where the complaint is about a licensed premises, such as a pub or nightclub;
• as part of their duties as a social landlord, where the alleged perpetrator is a council tenant; or
• using their powers under the Anti-social Behaviour, Crime and Policing Act 2014.

16. The 2014 Act gives powers to different agencies involved in tackling ASB. These include the power to issue community protection notices (CPN) or seek injunctions to prevent a nuisance. A CPN can be used to prevent anti-social behaviour which is having a negative effect on the community's quality of life, and which a council decides is unreasonable. CPNs require the behaviour to stop and, where appropriate, require the recipient to take reasonable steps to ensure it is not repeated. Failure to comply is an offence and may result in a fine or a fixed penalty notice.
17. The Anti-social Behaviour, Crime and Policing Act 2014 also introduced a mechanism to review the handling of complaints of anti-social behaviour (ASB). This is known as the ‘Community Trigger’ process. When a person requests a review, relevant bodies (which may include the council, police and others) should decide whether the local threshold has been met.
18. If the threshold has been met, the relevant bodies should undertake the review. They should share information, consider what action has already been taken, decide whether more should be done, and then inform the complainant of the outcome. If they decide to take more action, they should create an action plan. It is for relevant local bodies to agree their review threshold, but the ASB statutory guidance says this should be, at a maximum, that a complainant has made three reports of ASB within six months.

Council Policies

19. On its website the Council advises people to contact it if they are “currently experiencing excessive and persistent noise from a residential or commercial premises, that is significantly interfering with the normal use and enjoyment of your home”.
20. The Council says it will log all contacts. Where it receives three of more reports of noise or nuisance from the same household in a rolling month, it will pass the case to an Enforcement Officer to investigate.
21. It explains the definition of statutory nuisance as I have set it out above. The Council also lists types of noise it can or cannot deal with. It says a statutory nuisance cannot cover noise which is “generated from everyday normal domestic use of a premises” including “shouting, raised voices, arguments, laughing”. The Council says it offers no additional advice to officers on identifying what is a ‘normal domestic use’ where someone reports disturbance such as from shouting. However, this is something it told us during the investigation it would ‘follow up’.
22. The pages on the Council’s website covering noise nuisance contain no link to the Council policy on tackling anti-social behaviour.
23. The Council’s policy on tackling anti-social behaviour (ASB) is set out on a different page on its website. The website says that ASB is behaviour that can affect your quality of life and peaceful enjoyment of your home. It can include “behaviour that causes or is likely to cause harassment, alarm or distress”. The website provides some examples of behaviours it can and cannot investigate, examples of behaviours which should be reported to the police and a link to the page explaining its noise policy. It does not detail what powers the Council has to tackle anti-social behaviour or explain how cases will be investigated by it. It does not refer to Community Multi-Agency Risk Assessment Conferences (CMARAC).
24. The role of the CMARAC is relevant to this case and the Council describes this as a “multi-agency meeting where information is shared on complex/high risk cases involving vulnerable victims/perpetrators of ASB”. Organisations who attend the CMARAC can include various services provided by the Council such as housing or social services, as well as other organisations such as the police and NHS mental health services. The Council describes the conferences as a forum for discussing cases and agreeing plans of action to help manage individuals who present a high risk. It will consider cases where the community trigger is engaged.

Background/Chronology

25. Ms C says that since around November 2019 she has been disturbed by noise coming from an adjacent flat, which became occupied by Ms X around that time. Ms C reports the nuisance as consisting of shouting, ranting and aggressive language along with the banging of objects that can last for up to several hours at a time. Ms C believes Ms X is nearly always alone when these incidents take place. She also believes the behaviour and content of the shouting, may be illustrative of Ms X being vulnerable and having unmet mental health needs.
26. Mr B and Ms C have explained to me that initially they focused their enquiries with Ms X’s letting agent. They learnt from the agent that Ms X was housed by ‘the Council’, although as I go on to explain below it transpires this is another London authority – not the London Borough of Haringey. They received assurances from the agent that ‘the Council’ was looking to move Ms X to alternative accommodation. It was only after around 12 months therefore that Mr B and Ms C turned their attention towards Haringey Council to see if it could help them.
27. I asked the Council for records of its contacts with Mr B and Ms C. It provided one note which referred to Ms C contacting the Council in November 2019. This says she wanted to report ‘loud noise’. I found no evidence of how the Council responded to that report.
28. The next record was dated November 2020. Here, Mr B forwarded to the Council an email chain he had with the letting agent for Ms X’s property. In those emails the agent referred to speaking to ‘the Council’ and being advised the tenant would be moved soon.
29. Later that month Mr B also sent an email to the Council expressing frustration that Ms C had been living with the noise nuisance for around a year. He asked: “Could we get some clarity as to who we need to speak to in order to resolve this issue?  The letting agent assures us that the tenant will be rehoused but we have not been given any firm deadlines and the current situation is causing [Ms C] difficulty both in working and also it is causing her distress”.
30. The Council notes show the case was allocated to an officer and there is a short internal email chain where that officer says they have spoken to either Mr B or Ms C. But I have seen no record of the content of that call. Nor is there any other record which explains how the Council acted or responded to Mr B’s contacts. However, the Council has provided an email its officer explained with Ms C’s letting agent, where they were told which London authority had housed Ms X in the flat adjacent to Ms C. The agent said he was waiting to hear if the other London authority would consider moving Ms X. The Council suggested carrying out further work jointly with the agent in response to Ms C’s work, to which the agent indicated agreement.
31. In March 2021 Ms C began logging reports of disturbance using a ‘noise app’ which also allowed her to record noise incidents on her phone. The Council says it piloted the use of this app during the COVID-19 pandemic due to officers having less capacity to visit premises to witness disturbance. This was also a time when due to greater home-working and having fewer staff available, the Council says it experienced an unprecedented demand for this service. I have listened to a sample of those recordings on which a voice can be heard shouting. Although it is not possible from the recording to get any measure of how loud or intrusive it would be heard by Ms C.
32. Ms C used the noise app service 17 times between late March 2021 and mid-July 2021. Ms C reported disturbance lasting anywhere between 30 minutes and six hours with most reports being between two and three hours. Reports were made on separate days between 6:00am and 11:30pm with the majority falling in the morning. Ms C could score the intensity of the noise on a scale between 1 and 10 and scored it between a 6 and 10 with most reports in the 8-10 range. She also made comments with her reports including such statements as:

• “really loud ranting again this morning and banging things”;
• “another extremely upsetting morning of awful ranting”;
• “waking up to the same awful outbursts day after day is making me feel unwell”;
• “this is absolute hell, it’s almost midnight and I think she is rowing with another tenant. It is awful and she is slamming doors”.

33. The Council acknowledged some of these reports and provided the following comments in response:

• In April 2021 it told Ms C it had referred her case to a ward officer “but we are unable to enforce [against] shouting and loud voices”
• In early May 2021 it told Ms C “we are taking steps to try and resolve this case […] we are liaising with outside agencies. As I have previously stated the Council do not investigate loud shouting as it is not considered a nuisance in law”.

34. Concurrently, in April 2021, Mr B made a complaint with Ms C’s consent, unhappy with the Council’s lack of response to the disturbance coming from Ms X’s flat.
35. In May 2021 the Council provided a reply to the complaint. An officer said the Council was working with “other agencies” and was sharing information with the police and the “provider of the premises”. It also said the Council would “seek to use other ASB tools available”. It said it had served a ‘warning letter’ on Ms X. I asked to see a copy of all correspondence the Council had sent to Ms X and nothing was provided.
36. The Council provided a record that in May 2021 it was in contact with the Met Police. The police force advised it had no knowledge of the disturbance complained about by Ms C.
37. I have seen a series of emails the Council sent in May 2021. Initially these were to the letting agent of Ms X’s flat. In those emails it appears the Council was already aware that Ms X had been housed by another London Authority – although it is not clear where this information originated. They asked the agent to provide the Council with contact details of whom they had been liaising with at the other London Authority and these were provided.
38. Over three weeks in May the Council then sent several emails to the other London Authority. It received initial replies to confirm the contact details for the officer responsible for Ms X’s housing had changed but did not receive a reply from that officer, nor from their line manager.
39. But in June 2021 the Council was able to speak to an officer from the other London Authority. They described contacting Ms X to discuss concerns about her behaviour but implied they could not engage with her. They asked the Council to advise Ms C to keep an ongoing diary of the disturbance and indicated they would use this to consider moving Ms X to alternative accommodation.
40. The Council has provided records which say it also logged ‘an ASB complaint’ from Ms C in June 2021. A task-list associated with this case says the officer assigned the case spoke to Ms C and drew up an action plan. But I have seen no notes of the call nor any plan. Further tasks on the task list refer to ‘interviewing suspect’ and ‘local review by caseworker’. These entries are incomplete. The Council says these incomplete records reflect that at the time it was introducing a new computer records system and Ms C’s complaint was still being treated primarily as a noise complaint. The Council says that since the events covered by this complaint it has introduced separate teams dedicated to investigating ASB and noise.
41. In June 2021 the Council sent a further reply to Mr B’s complaint. This said the Council had “fully investigated and addressed” his concerns. It again told Mr B the Council had contacted other agencies including the letting agents for the neighbouring flat. The Council implied it was waiting to hear from “all the agencies” and if it did not do so, then as a next step it would take the case to its CMARAC (it did not explain what the CMARAC was). It encouraged Ms C to continue to report the noise nuisance and said it ”would try to attend” to witness the disturbance. It said it could not offer any “definitive timescale” for when there may be further developments in the case.
42. As part of my investigation, I asked the Council if Ms C’s case went to the CMARAC and what happened as a result. The Council told me it had no record of the case being passed to the CMARAC meaning either no referral was made or no record of a referral being made and rejected was kept. The Council said it did not consider Ms C’s reports would meet the threshold for discussion at a CMARAC. This is because it did not consider there was evidence of “significant ASB/harassment”.
43. I also asked the Council to update on its position since replying to Mr B’s complaint in June 2021. It said that it was sorry it had not always replied to Mr B and Ms C “in a timely manner”. But it said the reports made by Ms C concerned noise “we could not action (banging, loud talking/shouting)”. The Council said “we could not substantiate this but agreed to refer to [the other London Authority] on their behalf”. And that it has “updated them about our actions, explaining what was in our remit to address and that we were chasing a third party on their behalf to progress this”.

Findings

44. I have considered Ms C’s and Mr B’s contacts with the Council in chronological order before also considering how the Council answered their complaints. So, I begin by considering Ms C’s contact in November 2019. The Council has a record of Ms C contacting it for advice as she was first experiencing disturbance from Ms X. But the Council has no record of what, if any, advice it gave her. This failure to keep an adequate record was a fault.
45. I find no record of further contact from Ms C (or Mr B on her behalf) for another 12 months, when Mr B contacted the Council in November 2020. The Council has kept a record of contacting Ms X’s letting agent but not whatever communications it had with Mr B. It does not appear to have followed up on its own suggestion of working with the agent to address the disturbance reported by Ms C. And it failed to answer Mr B’s reasonable enquiry wanting to know about how to resolve the problems experienced by Ms C. This failure to keep records and provide a service compatible with basic good administrative practice was a fault.
46. Ms C’s third attempt to engage the Council began in March 2021, when she started regularly reporting nuisance using the Council’s noise app. She received limited responses to these reports which implied the Council had no legal powers to try and prevent the disturbance she reported because it was mainly from shouting or loud voices. This is not the case. The Council makes clear on its website that where some shouting or banging forms part of the ‘normal domestic use’ of a property then it will be unable to intervene. But this would not apply in cases where the disturbance was far greater than a normal domestic situation, which is what Ms C has persistently described. The limited response to Ms C’s messages was flawed therefore and justifies a further finding of fault.
47. I accept the Council did not entirely give the message there was nothing it could do to help Ms C. It promised that it was liaising with outside agencies. But that liaison fell far short of what could be reasonably expected. The Council did succeed in making contact with the London authority housing Ms X which indicated it would co-operate with any investigation into the reported disturbance and a willingness to potentially seek rehousing for Ms X. But the Council did not follow up on this contact nor advice Ms C of the same as the other London authority suggested. That was fault.
48. More widely the Council seems to have failed to undertake any systematic analysis to see if its noise service could investigate Ms C’s complaints. I can see no evidence of any analysis of her recordings. There was no attempts made by officers to visit and witness nuisance. There was no consideration of installing specialist noise recording equipment (although I note in comments sent in reply to a draft of this decision the Council has said it does not have access to such equipment). It attempted no direct contact with Ms X. There were limited contacts with her letting agent beyond confirming some basic contact details for Ms X and the other London Authority. This was all poor practice and justifies another finding of fault.
49. The Council also left Mr B and Ms C in the dark about what little it was doing. It did not tell them that Ms X has been housed by another council even though it knew this from November 2020. I see Ms C continued to post messages on the noise app for several weeks without getting further response. The Council was at fault for these failings in communication.
50. It appears that in June 2021 the focus changed from Ms C’s complaint being investigated as solely a noise complaint, to also one about ASB. But here again there are a series of failings by the Council. There are no communications to her which explain this; explain what ASB powers the Council was considering or what the outcome of any consideration of using ASB powers was. That was a further failure of communication and another fault.
51. And there is also nothing to evidence what this investigation consisted of. There are almost no notes, there is no plan of action and nothing to indicate what any investigation found. Like the earlier investigation of the noise complaint it appears to have been left incomplete. While I recognise the introduction of a new computer record system may have partially contributed to this, it was still a fault.
52. The Council had opportunities to reverse this pattern of failings when Mr B complained but failed to do so. Its initial reply in May 2021 said the Council had written to Ms X but I have seen no record of this. It also said the Council had been in contact with multiple agencies including the police. While that was correct, the letter failed to acknowledge the limited nature of the contacts it had made with the letting agent and other London authority at that time. Further the Council told Mr B that it would be looking to see what measures it could take under legislation and policies designed to protect citizens from the effects of ASB. But it failed to explain to him what “ASB tools” were available to it or which ones it was thinking of using. That was a fault.
53. Turning to the second response sent to Mr B in June 2021, this added further promises the Council failed to deliver. There is no evidence the Council ever referred Ms C’s reports to a CMARAC as it said it would. I also note it failed to explain what a CMARAC was. There is also no evidence it made attempts to visit Ms C as it said it would. The failure to carry out these steps justifies a further finding of fault
54. It is a core principle of good administrative practice the Council should be open and transparent with those who ask it for services or complain. The responses Mr B received to his complaints were misleading. I accept there may have been an element of ‘good intentions’ to both replies – with the Council intending to carry out certain actions. But even if I look at those responses in this more generous light, they still conveyed a false impression. The Council sought to reassure Mr B that it was seeking to resolve Ms C’s concerns. This was not the case as I have set out above.
55. I have considered what injustice this series of failings have caused Ms C. I consider Ms C’s contact in November 2019 was a missed opportunity for the Council to explain its policies and procedures to her. But the Council would have needed more than a single report to act. And I note that over the following 12 months Ms C spent her time in contact with the letting agent, of which the Council was unaware. Any injustice from the Council’s initial failing was therefore minimal and would not justify my seeking a remedy.
56. But since November 2020 the Council has been aware of the distress caused to Ms C by Ms X’s behaviours. I accept there is no guarantee the Council can alleviate such distress. If, as Ms C speculates, Ms X’s behaviours are triggered by a mental health condition then it may not be reasonable for the Council to use the blunt tool of a noise abatement notice or a CPN being mindful of its human rights and equality duties. It would also need the evidence to justify either approach, something which it does not have at this time (in part due to its failure to gather such evidence).
57. But nonetheless the distress Ms C has experienced may have been lessened, if after November 2020, the Council had:
• begun a systematic investigation into the disturbance she reports;
• made contact with the other London Authority;
• made contact with Ms X;
• taken the case to its CMARAC;
• or some combination of the above.
58. Taking these steps could have led the Council to take a different approach to trying to resolve the disturbance Ms C experiences. For example, by discussing with and encouraging the other London Authority to provide alternative housing for Ms X (something that Authority has suggested it might be willing to do with both the letting agent and the Council). It follows from the above therefore that I reject the Council’s suggestion that there is no action it could or can take here. As well as rejecting its suggestion that its communications with Mr B and Ms C have been sufficient.
59. Ms C has suffered injustice from therefore from the lack of service from the Council. We regard this as the loss of a non-monetary benefit. She will also have some distress in the form of outrage given the poor level of service received both in response to her service requests and complaint.
60. In addition, both Ms C and Mr B have been caused unnecessary frustration, time and trouble by the Council’s communication failings and its poor handling of their complaint.

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Agreed action

61. The Council accepts these findings set out above. To remedy Ms C and Mr B’s injustice it has agreed that within 20 working days of this decision it will:
1. apologise to Ms C accepting the findings of this investigation;
2. pay Ms C £2500 in recognition of the loss of service (for explanation as to this amount see paragraphs 65 and 66 below);
3. pay Ms C and Mr B an additional £200 to recognise their frustration, time and trouble (they should advise if they want this payment split or payable to one of them);
4. commit to carrying out a review of Ms C’s case in line with paragraph 60 below.
62. The review referred to at paragraph 61d) above should take account of the faults found in this case and should aim to complete within a maximum of three months. The Council should appoint a senior officer, not previously involved in the events covered by this complaint to oversee it. It must draw up a plan of action, to be shared with Ms C, that will explain how the Council will go about investigating the reports of disturbance she makes and seeking to resolve the problems she reports. It must consider if there is any formal or informal action it can take to help resolve the disturbance she reports.
63. I will not be prescriptive about what that plan of action should contain. But as a minimum I expect it to contain commitments:

• to review the evidence the Council currently holds about the disturbance caused to Ms C;
• to consider what steps the Council can take to gather further evidence if needed; for example, by witnessing the disturbance (ideally in person).
• to renew its efforts to contact the other London Authority in this case to find out if there is any prospect of re-housing Ms X elsewhere, given this has been discussed previously;
• to consider the case for taking Ms C’s case to the CMARAC; including under the community trigger process.

64. In addition to this personal remedy for Ms C, the Council has agreed to learn wider lessons from this case. It says that with reference to points c) and d) below it has already begun making changes to practice as well as rolling out more training for staff. Within three months of a decision on this complaint it has agreed to:
1. issue advice to all relevant staff on the importance of basic record keeping when investigating reports of noise nuisance or ASB; to include brief details of telephone calls and action being taken on cases;
2. issue advice to all relevant staff on where there might be instances where it can investigate or take action in respect of reports of shouting or raised voices if these are not reflective of ‘normal domestic use’ of dwellings;
3. complete a review of the information it currently publishes on its website to provide a link from the page on noise nuisance to the ASB pages; to provide more information about its ASB powers and a reference to the role of its CMARAC;
4. review of its current arrangements for checking on the progress of open investigations into noise nuisance or ASB to ensure these do not drift; for example, producing reports for management review where there has been no action taken on a case for several weeks (I suggest 8 weeks as a benchmark);
5. complete a review of its procedure for following up when it has issued a reply to a complaint to ensure it has taken the action promised in that reply; complaint responses should ideally contain named points of contact for complainants with information about who will be responsible for taking action and by when.
65. My recommendation at paragraph 61b) takes account of the Ombudsman’s guidance on remedies. This states that where a delay in investigating a complaint about noise or anti-social behaviour has caused a demonstrable lack of amenity we will usually recommend a payment in the range of £75 a month to £350 a month taking account of the severity of the loss and circumstances of the complainant. The greater the impact on daily life, the more a payment at the upper end of the range is justified.
66. I have used this guidance as my starting point. In the absence of the Council having conducted a satisfactory investigation into the disturbance Ms C reports I consider on balance the evidence it will have caused a ‘demonstrable lack of amenity’ must be based on her first-hand account. Taking account of the impact on Ms C’s sleep, work and health I consider a figure of £250 a month fair. I have applied this tariff for 12 months to cover the period March 2021 to February 2022. This takes account that the Council did not or could not have become fully aware of Ms C’s circumstances until November 2020 and that a reasonable investigation of her circumstances would have taken around three months (so I make no award for the time from November 2020 to February 2021). I am conscious the Council has not been made aware of further reports of disturbance since July 2021 but I consider no account should be taken of this when deciding on a financial remedy. This is because any loss of faith by Ms C in the Council’s ability to investigate her concerns would be justifiable given its failure to investigate properly up to that time. The Council’s complaint response in June 2021 also led Ms C to believe she would be hearing from it further, something which did not transpire.

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Final decision

67. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Ms C and Mr B. The Council accepts these findings and it has agreed action that I consider will remedy that injustice. Consequently, I have now completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman