Summary: There is no general fault in how the Council investigated complaints of ASB both by, and against, the complainant. The Ombudsman cannot investigate the elements of Mr B’s complaint relating to the Council’s role as his landlord. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Mr B. Mr B is represented in his complaint by his solicitor, Mr C.
2. Mr B complains about the way the Council has dealt with his reports of anti-social behaviour (ASB) by his neighbour, and also how it has dealt with reports he is guilty of ASB himself.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
4. 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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)

Back to top

How I considered this complaint

7. I reviewed Mr B and Mr C’s correspondence with the Council, along with the Council’s case notes.

Back to top

What I found

8. Part of the complaint Mr B has made to the Ombudsman relates to actions the Council has taken in its role as his landlord. Such matters fall to the Housing Ombudsman Service’s jurisdiction, and so, as explained above, we cannot consider complaints about them.
9. For this reason, I will not make any findings on this aspect of Mr B’s complaint; but I will refer to them in the following chronology, where necessary for context.
10. This chronology is also not intended to provide a detailed account of everything which happened between the various parties to the complaint, but simply to provide a general overview of the key issues and events.
11. Mr B is the Council tenant of a semi-detached house. The adjoining house is privately owned and occupied.
12. In early 2020, Mr B says he began experiencing noise nuisance because of renovation work the neighbours were undertaking on their house. In August, Mr B made a complaint about this to the Council. The Council wrote to the neighbours to remind them of the permitted hours for such work.
13. The Council says its environmental health team investigated Mr B’s complaints of a potential statutory nuisance between August 2020 and April 2021, but did not consider the noise amounted to this.
14. In November 2020, the Council’s ASB team referred the case to a mediation service, to seek to resolve the differences between Mr B and his neighbours.
15. In January 2021, the Council wrote to Mr B to explain it could not serve an abatement notice on the neighbours without first identifying a statutory nuisance. Shortly after this Mr B submitted several videos to the Council, which he considered showed the ASB his neighbour was causing. This included parking outside his house and the inconsiderate placement of a skip. The Council responded to explain it could not prevent the neighbour from parking outside Mr B’s house, but would investigate the skip.
16. Shortly after this the mediation service contacted both parties, but Mr B said he was considering taking legal action against his neighbour and did not wish to pursue mediation at that time.
17. In March, a second attempt to arrange mediation failed because the neighbour wished to attend with a ‘supporter’, to whom Mr B objected. The mediation service told the Council it had closed the case. The Council then contacted Mr B to attempt to revive the mediation process. Meanwhile, Mr B explained he had contacted the police about dust on his car and allegations the neighbour had been filming him and his family.
18. Later in March, the Council received a complaint from Mr B’s neighbour that Mr B had been aggressive towards him. The Council wrote to Mr B to warn him this may represent a breach of his tenancy agreement, which could lead to the Council taking enforcement action against him.
19. In April, after further complaints from both parties, the Council reviewed more video evidence Mr B had submitted. The Council decided it did not support Mr B’s allegations its neighbour, but in fact showed Mr B spraying the neighbour with his garden hose. The Council wrote to Mr B to explain this and served him with a notice of demotion (this reduces the security of a social housing tenancy, as a sanction against ASB by tenants).
20. In April and May, the Council wrote to the neighbours to discuss the removal of the skip.
21. Also in May, the Council wrote to Mr B to explain it was withdrawing the notice of demotion and was instead drawing up an acceptable behaviour agreement (ABA) for him. The Council ‘served’ the ABA on Mr B later in the month.
22. In June, the Council sent Mr B a stage 1 complaint response. It upheld his complaint, accepting it should not have served the notice of demotion and confirming again it had been withdrawn.
23. Mr B made further reports of ASB to the Council, including that another local resident had made threatening gestures towards him.
24. In July, the Council sent Mr B a stage 2 complaint response. It again confirmed it had withdrawn the notice of demotion, and offered to reimburse him for the fees he had incurred instructing a solicitor. The Council also offered him an additional £150 as a “goodwill gesture”.
25. In August and September, the Council considered further video evidence Mr B had submitted, but again explained to him it did not consider it demonstrated any unreasonable behaviour by the neighbours. The Council made another referral to the mediation service.
26. On 27 September, Mr C made a complaint to the Ombudsman on Mr B’s behalf.
27. In October, Mr B made further complaints about the neighbours’ parking. The Council explained again they could not take any action about this because there were no parking restrictions on the road.
28. In November, the Council confirmed mediation had been agreed by both parties and was due to begin. After the first session, the Council wrote to Mr B in December and explained he was supposed to attend the session alone, and not with his wife and daughter as he had done. The Council asked Mr B to attend future sessions on his own.
29. In January 2022, Mr B reported to the Council that the other local resident (the neighbours’ ‘supporter’) had run over his foot in her car. The Council asked Mr B to submit medical evidence of this and confirm he had reported it to the police. The Council noted Mr B had refused to give consent for it to access his medical records.
30. The police later confirmed it had closed its investigation of the alleged incident because of a lack of evidence.
31. At the time of writing, the Council has confirmed its investigation of the alleged ASB and noise nuisance is still ongoing.

Back to top

Legislative background

Anti-social behaviour

32. Councils have a general duty to take action to tackle anti-social behaviour. 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.
33. 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 (although we are unable to investigate the council’s actions as a social landlord); or
• using their powers under the Anti-social Behaviour, Crime and Policing Act 2014.

34. The 2014 Act introduced six new powers for agencies involved in tackling ASB. These are:

• the power to issue community protection notices (CPN);
• the power to make a public spaces protection order (PSPO);
• the power to close premises for a specified period of time;
• a civil injunction (a court order, which can be made upon application by the local authority or other agencies);
• a criminal behaviour order (a court order made following a conviction); and
• the power for the police to disperse people from a specified area.
  Community Protection Notices

Community protection notices

35. Councils and the police can issue Community Protection Notices (CPN) to prevent anti-social behaviour which is having a negative effect on the community's quality of life, and which they decide 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.
36. Councils must issue a written warning in advance of the CPN. It is for the person issuing the written warning to decide how long is appropriate before serving a CPN. A CPN can be appealed in the Magistrates' Court within 21 days by the recipient if they disagree with the council’s decision.

Mediation

37. Where reports of ASB or nuisance appear to arise from, for example, an entrenched dispute between neighbours, councils may refer the matter to a mediation service. Mediation involves one or more meetings between the parties, in the presence of an independent mediator, where they can discuss their respective grievances and attempt to resolve them amicably.
38. Mediation is not a form of enforcement, and any agreement made during mediation will not have a legal standing. Mediation can only take place voluntarily and with the agreement of all parties to the dispute.

Statutory nuisances

39. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
40. Typical things which may be a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street
• smoke from premises
• smells from industry, trade or business premises
• artificial light from premises
• insect infestations from industrial, trade or business premises
• accumulation of deposits on premises

41. 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.

42. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) 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 people to contact, if a nuisance occurs outside normal working time.
43. 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.
44. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation

Abatement notices

45. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
46. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
47. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

Back to top

Analysis

48. The Ombudsman’s role is to review how councils have made decisions. We may criticise a council if it has, for example, not followed an appropriate procedure, failed to take account of relevant evidence, or not properly explained why it has made a decision. However, we cannot make operational or policy decisions on a council’s behalf. We do not offer a right of appeal against a council decision, and we cannot direct councils to act against their own professional judgement, where we find no evidence of fault in that judgement. We cannot uphold a complaint simply because someone disagrees with what a council has done.
49. In this case, there is clearly an entrenched and ongoing dispute between Mr B and his neighbours, which has grown to include other local residents. Both parties to the dispute have made a series of allegations against each other.
50. In the general sense I do not see any evidence of fault in how the Council has handled this situation. I acknowledge Mr B considers he is the victim of ASB, but it is for the Council to decide whether anything he reported amounted to something against which it could, or should, take action.
51. The Council made clear this was not the case – for example, it explained to Mr B several times there was no legal basis for it to prevent his neighbours parking in front of his house, and that it was not satisfied there was evidence the neighbours were creating a statutory nuisance. The Council did, initially, remind the neighbours of acceptable hours for their renovation works, but when Mr B later complained about noise from the works at a particular time, the Council explained it did not consider it had been an unreasonable time for the works to be carried out.
52. This is not to say I dismiss Mr B’s view the neighbours have been purposely seeking to antagonise him. But, even if this is true, it does not mean the Council is empowered to take action against them, where it does not consider their behaviour meets the appropriate threshold. This is a decision for the Council to make, and it is not for me to review the merits of that decision or direct the Council to take a different view.
53. I also appreciate Mr B’s distress at the Council’s decision to serve him a notice of demotion. However, as I have explained, this is not a matter I can consider, as it relates the Council’s role as a social landlord and so falls outside our jurisdiction.

Back to top

Final decision

54. I have completed my investigation with a finding of no fault.

Back to top

Investigator's decision on behalf of the Ombudsman