Decision : Upheld
Decision date : 11 Aug 2022
The Ombudsman's final decision:
Summary: Mr C complained that the Council failed to take adequate action to control anti-social behaviour by his neighbours in the block where he lives and wrongly refused his application for the ‘community trigger’. The Council was at fault because its out-of-hours noise reporting system was inoperable after a cyber-attack in October 2020. This caused Mr C injustice as it prevented him from complaining at that time. The Council has already apologised. Otherwise, the Council was not at fault. It considered Mr C’s community trigger request correctly and took proper steps to control anti-social behaviour.
- The complainant, Mr C, says the Council is at fault for:
- Failure to control the anti-social behaviour of certain residents of the block of flats where he lived,
- Failure to thoroughly investigate his request to activate the ‘community trigger’,
- Failure to take adequate action to ensure that the block was safe, and
- Failure to investigate his complaints adequately.
What I have investigated
- I have investigated the parts of Mr C’s complaint which are set out in paragraph 1. I have set out the parts of Mr C’s complaints which I have not investigated in the final paragraphs of this draft decision.
- I have investigated Mr C’s concerns as far back as November 2019. This is because, although we do not normally investigate events occurring more than a year before a complaint is made, in this case, there is, in my view, good reason to do so. Mr C made a stage one complaint to the Council in December 2019 and has complained without stepping away from the process since then. Further, while Mr C complained to the Ombudsman in October 2021, he had tried to complain earlier but could not because of the COVID-19 pandemic.
The Ombudsman’s role and powers
- We cannot investigate late complaints unless we decide there are good reasons. A late complaint is one made more than 12 months after something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
- In addition, service failure’ can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
- 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)
- If we are satisfied with an organisation’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 considered the evidence sent to me by Mr C and the Council. I wrote an enquiry letter to the Council requesting further information. I applied any relevant law and guidance and made a decision on the available evidence.
- Mr C 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
What should happen
- On-going anti-social behaviour (‘ASB’) such as the inconsiderate making of noise may require intervention by councils, police and registered social landlords.
- 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.
- 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.
- The Council does not currently have an ASB policy but is working on 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?
- Officers should manage 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 after a report of ASB from a member of the public:
- The council should investigate, assessing risk to the complainant and others and their vulnerability
- The Environmental Protection Act 1990 deals with noise nuisance. On receiving a report of a noise nuisance, a council must investigate to see whether it amounts to a ‘statutory nuisance.’ A statutory nuisance will 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.
- A statutory noise nuisance must be sufficient to cause distress to a person of normal sensitivity. A council officer will therefore need to visit to make an independent judgment as to whether the noise is a statutory nuisance.
- 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.
- 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 ASB case review – ‘the community trigger’
- The Anti-social Behaviour, Crime and Policing Act 2014 introduced a mechanism for alleged ASB victims to request a review of the handling of their case by the ‘relevant bodies’. This is commonly known as the ‘Community Trigger’.
- The relevant bodies for the Community Trigger process are the local council, police, clinical commissioning group, and social housing providers. They should agree a local Community Trigger policy, which will set a threshold at which complainants can request a review.
- While this is a multi-agency process, we can only consider the council’s part in it.
- The maximum threshold allowed by the statutory guidance is that a complainant has made three separate reports of ASB to any of the relevant bodies in the previous six months, with each individual report being made within one month of the incident in question. The complainant must also request the review within six months of their most recent report.
- Local relevant bodies may set a more ‘generous’ threshold than this – for example, three reports within 12 months, rather than 6 – but not a less generous threshold. Relevant bodies should also consider accepting a ‘below threshold’ request under certain circumstances, such as where the reported ASB is extremely serious, or where the complainant is particularly vulnerable.
- Upon accepting a review request, the relevant bodies should discuss the case together and share information (they may need to obtain the complainant’s permission to do this). They should consider any action they have previously taken, and whether they require any further information, and propose a response. If they consider there is further work is needed, they should make recommendations and agree an action plan. They should then share the outcome of the review with the complainant.
- Each area should publicise the local Community Trigger process in a clear and accessible way. For example, each relevant body’s website may explain the process in detail, or provide a link to another, dedicated Community Trigger website. Relevant bodies must also publish statistics showing the number of reviews which have been requested and/or conducted, and whether they led to recommendations being made.
Council community trigger policy
- The Council’s community trigger policy is set out on its website. It says, “you can use it if you have been the victim of ASB…and you have already reported it to the Council, police and/or your registered housing provider about three separate incidents in the last 6 months [and] you consider there has been no action taken”.
- Mr C moved to his flat in a block of flats in the Council’s area nearly ten years ago. His landlord was a large provider of affordable housing. Mr C says he was misled into moving there. He says the landlord told him the block contained studio flats for key workers. In fact, he says, it became a hostel for the homeless. I have called it ‘the Block’.
- Mr C first contacted the Council about the Block in 2016. By this time, a new operator had taken over its management. A neighbour asked a councillor to help get compensation from the original landlord which, Mr C says, had enticed him to live at the Block with false promises of a reduced rent. Mr C and the neighbour also complained about poor management and a lack of fire security. A councillor asked the Private Sector Housing team to investigate.
- The evidence shows that, in late 2019 and early 2020, Mr C complained on several occasions about noise and ASB in the Block. Mr C’s complained formally to the Council in December 2019. He said, in summary:
- The Council had allowed anti-social tenants to live in the Block which caused a nuisance and posed a risk to other residents. He named tenants he claimed were responsible for ASB and occasions when they had done so.
- The Council was responsible for a “wilful lack of action” which was causing Mr C “stress and anxiety as a vulnerable adult”, and
- There had been failures in the Council’s complaint handling process.
- The Council responded to Mr C’s complaint at stage one in January 2020. Mr C was not satisfied with the response and escalated his complaint to stage two. At the Council’s request, Mr C expanded on his complaints. He said, in summary:
- By placing homeless people in the building, the Council had contributed to the ASB issues in the Block. It had therefore been negligent and had failed in its duty to him as a vulnerable adult.
- The Council had failed to respond adequately to his stage one complaint and was “hiding behind the disingenuous need for diary sheets to escape taking action” about ASB.
- The Council had told him he could use one diary sheet for complaints against different residents which was incorrect.
- The Council refused to accept video recordings as evidence of noise or ASB.
- Homeless residents causing ASB: The Council had asked the landlord to accept tenants. The landlord had then selected and vetted them. The Council did not bear responsibility for them.
- The Council required evidence to take action over noise or ASB. This was stated on the website and was Council policy. Mr C had refused to allow officers to enter his flat and had also required the Council to correspond with him by letter only which meant that it could not respond quickly.
- Diary sheet information: The Council accepted it had provided misinformation and apologised.
- Video recordings. The Council could not accept video evidence. Noise monitoring equipment would not be able to determine where the noise came from. An officer would need to determine that.
Further ASB complaints
- The records show that Mr C contacted a Council officer in the safety team, Officer O, occasionally in 2020. In May 2020, Officer O contacted one of Mr C’s neighbours, Mr D, on Mr C’s behalf and asked him to reduce the noise from his flat. As she arrived to deliver the letter, she heard noises from Mr D’s room. She texted Mr C to tell him that she had heard some noise and asked him to contact her if there was a problem in future. Officer O also sent text messages about noise to all residents of the Block.
- Mr C contacted Officer O about Mr D again in October 2020. Officer O again phoned Mr D who apologised and turned his music off. Mr C responded saying, “since that final effort some months ago, everyone with the exception of [Mr D] has been completely reasonable to each other”. The records show that Mr C agreed to send in diary sheets but did not do so.
- However, the records show Mr C again became concerned about noise from Mr D’s flat again in October 2020. He contacted Officer O who contacted Mr D. Mr D agreed to turn his music off. Officer O asked to visit to talk to Mr C and Mr D and carry out a ‘sound level check’. Mr D agreed to take part. Mr C did not respond.
- Mr C also tried to phone the Council’s out-of-hours noise line on 10 and 11 October 2020 but was unable to get through.
- In mid-October 2020, Mr C made a further complaint. He said the Council had:
- Allowed Mr D to harass and intimidate tenants through ASB,
- Deliberately run an inoperable out-of-hours ASB/noise reporting service, and
- Refused to accept phone recordings as evidence of noise nuisance.
- Officer O had been working throughout 2020 to help reduce the nuisance,
- A cyber-attack on the Council had closed down the phone service on the days that Mr C phoned. It apologised for the lack of service but said it had beyond the Council’s control.
- It still could not accept recordings as evidence. However, Officer O had offered to come to visit to try do a sound level check.
- The Council did not uphold Mr C’s complaint.
- In January 2021, Mr C expanded his complaints to include residents other than Mr D. He reported noise from the tenants of two more flats and their visitors while continuing to report noise from Mr D’s flat. In particular, he reported an argument coming from another flat. On investigation, it was found that this flat had been unoccupied at the time that he complained.
The ‘community trigger’ application
- In January 2021, Mr C applied to the Council for a ‘community trigger’ review. Three days later, the Council acknowledged his application. It said it would respond within fifteen days. The Council passed the community trigger review to an employee of an independent housing charity to review his request.
- On the day before the fifteen-day deadline passed, an officer wrote to Mr C saying that the response would be a few days late. The response arrived three days later. An employee of the charity rejected Mr C’s community trigger request. The investigator said that the criteria were not met because Mr C’s concerns had been investigated and his vulnerability had been considered.
- In the spring of 2021, Mr C complained formally to the Council about security in the Block. He also complained about a rat infestation saying he had found a rat in his cupboard. He initially complained to the Community Safety and Enforcement Team who referred him to the Private Sector Housing Team. An officer, Officer P, from that team, wrote to Mr C and told him he would write to the landlord and ask for pest control records and risk assessments.
- In February 2021, Mr C wrote to the Council informing it that he intended to complain to the Ombudsman about its failure to stop ASB and noise coming from a flat in the Block.
- Mr C complained to the Ombudsman in October 2021.
- Mr C has since made a further community trigger application which has been refused. I have not considered this during my investigation. He has also made various other complaints about the Council’s actions or lack of action concerning ASB and/or noise nuisance in the building. I have not investigated these as the Council has not had a chance to respond.
Was there fault causing injustice?
Failure to control noise/anti-social behaviour
- The Council says that, while it was not possible to visit the Block regularly during 2020 because of COVID-19, it took steps to address Mr C’s concerns. It says it worked alongside the police and asked them to increase their patrols. It cooperated with the landlord to manage problem tenants and the landlord organised a letter drop. It sent letters to alleged perpetrators. Tenants with particular drug and alcohol problems and referred them to outreach agencies.
- Having received reports of nuisance from Mr C, Officer O told Mr C that she would have to have evidence of noise levels in his flat. Mr C viewed this as being “dishonest and deflective”
- I do not agree with Mr C’s opinion.. In order to establish that there is noise nuisance or ASB, councils must gather evidence. Because they cannot accept any such report at face value. Further, for noise to be a statutory nuisance, it must reach a level that would be distressing to a person of normal sensitivity.
- For those reasons, Mr C’s word alone was not enough and, in the Council’s view, because of the densely packed nature of the accommodation, noise monitoring equipment would not be effective as it would not indicate where any noise came from. Therefore, the Council said, an officer had to witness any disturbance.
- The Council in this case saw Mr C’s reports about Mr D primarily as a noise nuisance rather than an antisocial behaviour problem and treated it as such. It treated other incidents in the building as ASB. Officer O talked to Mr D and tried to reach informal resolution.
- Mr D was happy to cooperate with Officer O’s requests to hold noise level meetings. Mr C, though, saw Officer O’s search for consensus as evidence that she was taking Mr D’s side. I do not accept that this was the case. In my view, she was trying to solve a problem.
- Mr C wanted the Council to accept video evidence. The Council explained why it could not accept it. The Council was not at fault.
- Mr C complained about receiving incorrect advice about diary sheets. The Council apologised. However, as this was a minor administrative error and I have seen no evidence that Mr C sent in any diary sheets, I have not found fault.
Failure of out-of-hours phone service
- The Ombudsman refers to both service failure and maladministration as ‘fault’. While there was no maladministration over the failure of the out-of-hours call line in mid-October 2020, this was clearly a service failure which was, therefore, fault. It caused Mr C injustice in the form of frustration. The Council has already apologised to Mr C and there is, therefore, no need for a further remedy.
Failure to investigate community trigger request
- The Council employed an independent investigator from a reputable charity to investigate Mr C’s community trigger request. The investigator considered all relevant factors. The decision was three days late but this was at a time when COVID-19 was causing problems for councils. I cannot see that it caused Mr C any injustice and I do not find fault.
Failure to protect Mr C as a vulnerable adult
- Mr C says the Council failed protect him as a vulnerable adult with mental health difficulties. The Council asked Mr C to provide detail and evidence. He said he had post-traumatic stress disorder and was legally disabled. He provided no evidence. The Council checked with local mental health services who had had no contact with him. Therefore, in my view, the Council took adequate steps to investigate Mr C’s vulnerability and was not at fault.
Failure to investigate complaints adequately
- The Council denies it failed in this regard and I accept its position. Mr C’s complaints have been thoroughly investigated.
- In late 2020, Mr C decided that he required individual complaint responses to each of his noise reports to the Council. In fact, as the Council told him, his individual contacts were not all classed as complaints as some were reports of noise nuisance/ASB.
- The Council was not at fault for this approach. The complaints process is for dealing with complaints about Council failures. Mr C was reporting noise or ASB by members of the public. The Council has a separate procedure for this.
- Further, I cannot see that there was any fault in the way the Council dealt with Mr C’s complaints generally.
- I have made my decision and closed my investigation.
Parts of the complaint that I did not investigate
- Mr C’s complains about matters as far back as 2013. We do not usually investigate complaints made over a year after the events concerned unless there is good reason. In this case, I can see no reason to go beyond November 2019.
- Nor have I investigated events which have taken place since Mr C complained to the Ombudsman. The law says councils must have a chance to respond to complaints before we can look at them.
- Mr C has complained about the Council’s decision to house problem tenants in the Block. I have not investigated this part of his complaint as this is not the system which is in operation. The Council and the landlord operate a ‘nominations agreement’. This means the Council requests landlords to take on tenants. Landlords then vet the tenants and accept them if they wish. Tenants and management enter into assured shorthold tenancies. The Council is not a party.
- Mr C also says the Council has failed to manage the Block over the last five years. However, the Council does not own or manage the building. The Block has owned and/or operated by at least three management companies while Mr C has lived there. I cannot therefore investigate.
- Mr C also complained about the management company now operating the building. This company is a private company and does not manage the Block on the Council’s behalf. Therefore, we cannot investigate their actions. Further, this company only took over management of the Block after Mr C complained to us.
- Mr C also says that ‘multiple Council departments’ have “abused and denied my human rights and residency tenancy rights and systematically dishonoured their Duty of Care to me”. However, he has not provided further detail. I cannot, therefore, investigate.
Investigator's decision on behalf of the Ombudsman