Summary: Mr X complained the Council has failed to properly investigate and take appropriate action against his reports of anti-social behaviour and noise from his neighbours. The Council is at fault. It has investigated Mr X’s complaints for nearly two years without clearly explaining its decision making and conclusions. It also wrongly refused Mr X’s request for the Community Trigger. The Council should apologise to Mr X and pay him £300 to recognise the distress, frustration, uncertainty and time and trouble caused to him. It should communicate to Mr X what, if any action it intends to take and reconsider his request for the Community Trigger.

The complaint

1. Mr X complains the Council has failed to properly investigate and take appropriate action against his reports of anti-social behaviour and noise from his neighbours from April 2021 onwards.
2. Mr X says the anti-social behaviour and noise has caused him and his family significant distress and has affected their health, wellbeing and general family life. Mr X says the matter is ongoing without any adequate conclusion.

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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. 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)
4. 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)
5. 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)
6. 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)

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How I considered this complaint

7. I spoke to Mr X about his complaint and considered information he provided.
8. I considered the Council’s response to my enquiry letter.
9. Mr X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Relevant law, guidance and policy

Anti-social behaviour (ASB) and noise nuisance

10. Councils have a general duty to take action to tackle anti-social behaviour (ASB).
11. Anti-social behaviour (ASB) is defined in law (section 2 of the Anti-social Behaviour, Crime and Policing Act 2014) as:
• conduct that has caused, or is likely to cause, harassment, alarm or distress to any person;
• conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises; or
• conduct capable of causing housing related nuisance or annoyance to any person.
12. ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation.
13. For example, they may approach a complaint:
• as an environmental health issue, where the complaint is about noise or pollution;
• 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.
14. 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.
15. 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.
16. We have no power to investigate the Council’s actions in its capacity as a landlord to deal with the behaviour of its tenants. Such a complaint is caught by the restriction outlined at paragraph 5 above. We have jurisdiction to deal with complaints about how councils have dealt with anti-social behaviour using their non-landlord powers such as their general anti-social behaviour powers or noise nuisance powers.

The Community Trigger

17. The Anti-social Behaviour, Crime and Policing Act 2014 introduced a mechanism to review the handling of complaints of anti-social behaviour (ASB). This is commonly 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. The Act states the community trigger is ‘intended as a backstop safety net for the victims of anti-social behaviour who consider that there has not been an appropriate response to their complaints about such behaviour’.
18. The Anti-social Behaviour, Crime and Policing Act 2014 statutory guidance (2021) outlines the community trigger process.
19. The maximum threshold allowed by the statutory guidance is that a qualifying 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. It says the threshold must be no higher than three qualifying complaints of ASB in a six-month period.
20. When considering whether the threshold is met relevant bodies should have regard to:
• The persistence of the ASB
• The harm or potential harm caused by the anti-social behaviour
• The adequacy of the response from agencies.
21. Councils should publicise the local community trigger process in a clear and accessible way. Councils must also publish statistics showing the number of reviews which have been requested, conducted, and whether they led to recommendations being made.

The Council’s policy on ASB and the community trigger

22. The Council’s ASB policy outlines its responsibilities to addressing reports of ASB and noise nuisance. The policy also covers its responsibility as a landlord in responding to ASB involving houses under its management. The Council’s service commitment to dealing with ASB and noise includes:
• looking to take appropriate action against those responsible, where we have evidence, and we will agree next steps with you so you are clear on what actions we can and will take.
• receiving an update on progress with your case within 14 working days.
• With ongoing cases, we will review each report of ASB you make and you will receive an update on any new developments with your case. You will have a dedicated case officer who you can contact should you need to.
• If we decide to close a case we will contact you to tell you why.
23. The policy also outlines the Council’s local threshold for the community trigger. It says, ‘The Community Trigger allows reporters of anti-social behaviour to request a review if they believe that no action has been taken in response to their reports of anti-social behaviour. A resident can use the community trigger if the following threshold is met’.
• They have reported ASB to the Council, police and /or registered housing provider three times about separate incidents in the last six months -
• And no action has been taken.
• And their case has been closed.
• Five individuals in the local community have reported similar incidents of ASB separately.

Section 82 of the Environmental Protection Act 1990

24. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
25. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82.

Ombudsman’s principles of good administrative practice

26. Our published guidance on good administrative practice outlines standards we expect when we investigate bodies in our jurisdiction.
• Getting it right – we expect councils to provide effective services taking reasonable timely decisions, based on all relevant considerations.
• Being service-user focused – This includes setting expectations for service users.
• Being open and accountable – This includes stating the criteria for decision making and giving a reason for decisions. It also includes keeping proper and appropriate records and taking responsibility for actions.

What happened

27. Mr X owns a house and lives next door to a family who are Council tenants. The houses are adjoined in a terrace. Mr X moved into his house with his family, including a child in March 2021.
28. In April 2021 Mr X started contacting the Council about ASB and noise from his neighbours. During April Mr X made over 30 reports which consisted of late-night shouting, swearing, loud music and alleged drug use at the property.
29. In late April a Council ASB officer contacted Mr X’s neighbour and issued them with a breach of tenancy warning letter and a Community Protection Warning (CPW) letter. This letter warned Mr X’s neighbour the Council could issue a Community Protection Notice (CPN) if the family failed to stop the noise nuisance. The Council updated Mr X with the action it had taken.
30. In July 2021 the Council closed the case as Mr X had made no further reports to it since it had issued the CPW letter.
31. In September 2021 Mr X made new reports of ASB and noise from his neighbours. His reports included loud shouting and music with much of it late at night and coming from the room adjacent to the master bedroom. Mr X continued making several reports each week during September and October.
32. In October a Council officer visited Mr X’s neighbour to speak with them about Mr X’s reports. Records show the neighbour told the Council they are a large family with a disabled adult living there. They said sometimes they had disagreements which involved raised voices.
33. Mr X continued making similar reports to the Council on an almost daily basis. Mr X said the noise was having a significant impact on his and his wife’s health and wellbeing. Mr X sent evidence of the noise in the form of video and audio recordings.
34. At the end of October Mr X requested the Council consider his case under the Community Trigger. There is no evidence the Council responded to this request.
35. In early November 2021 the Council considered Mr X’s latest reports and the video evidence and noted the noise was unacceptable. The Council issued the neighbour with another breach of tenancy warning letter and said it would monitor the reports with a view to issuing a CPN.
36. Mr X complained to the Council in November 2021. He said he had made over 100 reports of noise and ASB but the Council was being too slow to respond and had failed to make sufficient attempts to gather evidence. He said the Council had failed to take any effective action.
37. The Council responded to Mr X at stage 1 of its complaints procedure later that month. The Council acknowledged it did not realise the level of noise until Mr X had recently sent the videos to it. The Council explained it only had three officers and the lack of staff impacted on its ability to respond in a timely way.
38. Shortly after issuing the complaint response the Council served Mr X’s neighbour with a CPN. The notice explained the Council may prosecute if the neighbour did not stop the noise.
39. Mr X continued making almost daily reports of ASB and noise throughout December and into January 2022. Mr X asked the Council when it intended to take further action.
40. The Council installed a noise machine at Mr X’s house during January and collected it after three weeks. Records show the Council checked the footage but said none of the recordings went over 45 decibels and therefore it was unsure whether any prosecution would be successful. The Council noted the noise consisted of loud shouting, talking and children running around which went beyond midnight.
41. Records show the Council discussed whether to take action against the neighbour’s tenancy but decided there was not enough evidence which would warrant eviction. The Council suggested sound insulation in Mr X’s neighbour’s property might help and passed the matter to one of its housing surveyors to investigate.
42. Mr X made further multiple reports throughout February and March 2022 and chased the Council about the surveyor. Mr X said his wife was heavily pregnant and the continued late night shouting and noise was affecting her sleep and health. Mr X questioned the Council around why it was applying decibels to the matter. He said the Anti-social behaviour Crime and Policing Act was silent on decibels and therefore the Council was applying the wrong test. Mr X also asked again about the Community Trigger given he had made in excess of 170 reports without any resolution.
43. Mr X escalated his complaint to stage 2 in May 2022, reiterating much of what he said at stage 1.
44. The Council’s housing surveyor visited both Mr X and the neighbour’s property in June 2022. They identified some repair issues within Mr X’s neighbour’s property which may be affecting sound. The surveyor recommended fitting Therma-board in the neighbour’s bedroom and also for the neighbours to remove wall mounted televisions.
45. The Council issued a stage 2 complaint response. It apologised for communication delays but said it had taken action by way of issuing the neighbours with a CPW, CPN, carrying out home visits and inspecting both properties. The Council agreed to fit Therma-board and would continue to monitor reports. This was fitted to the neighbour’s property in June 2022.
46. Between August and October 2022 Mr X made further multiple reports to the Council about continued noise and ASB. Mr X asked the Council to consider taking action around the neighbour’s tenancy or to get a court injunction. Mr X provided further videos of ASB and noise which the Council accepted were disturbing.
47. In November 2022 the Council asked Mr X to complete a victim impact statement with a view to considering issuing a notice to seek possession of the neighbour’s property due to persistent breaches of tenancy. Mr X submitted this to the Council at the end of November 2022.
48. The Council carried out further noise monitoring at the end of 2022 however it deemed the recordings were still under 45 decibels, did not show excessive levels of noise and was not unreasonable. It considered the sound insulation had an impact in reducing the noise level. It recommended Mr X install his own sound insulation.
49. Mr X remained unhappy with how the Council had investigated his reports and complained to us.

The current situation

50. The Council said it was seeking legal advice around whether it had sufficient grounds to apply for a possession order. Since complaining us the Council has now applied for the possession order. It said the noise monitoring on both occasions found no statutory nuisance. The Council said Mr X should consider improving insulation to his property.
51. The Council said Mr X’s case does not meet its criteria for a Community Trigger because it is still actively investigating and considering the matter. The Council said it is unable to provide statistics on Community Trigger requests and outcomes prior to 2021 due to a ‘system change’. The Council website shows for the 2021/22 calendar year it received 13 applications with none of them meeting its threshold.

My findings

52. Mr X has made in excess of 200 reports of ASB and noise against his neighbours, who are Council tenants since March 2021. He has strong feelings about the behaviour of his neighbours and wants the Council to take action against them. We cannot consider what action or decisions the Council took or considered in relation to its duty as a housing landlord. We can only consider the Council’s response to his concerns of ASB and noise.
53. The Council responded to Mr X’s initial concerns appropriately by engaging with him and the neighbours and then issuing a CPW letter in April 2021. Records show Mr X did not make any further reports and therefore there was no fault in the Council closing the case in July 2021.
54. Since September 2021 the Council has investigated and looked into Mr X’s concerns using various legislation. However, it has let the matter drift without taking any decisive action. The Council issued Mr X’s neighbour with a CPN under the Anti-Social Behaviour, Crime and Policing Act 2014 in November 2021. Mr X raised further complaints and provided video evidence following this notice. There is no evidence showing whether the Council considered further action or explained to Mr X why it did not intend taking further action. That is fault.
55. Following the CPN the Council then used a noise machine to monitor the noise, presumably using Environmental health legislation to see if it could identify a statutory nuisance. Mr X’s concerns are not so much about the level of decibels but the substance of the noise, the content of the noise and the lateness of it. While not fault, there is no explanation of why it decided using statutory nuisance powers which requires a much higher threshold to take action. The Council informed Mr X the noise readings did not warrant further action and instead decided to investigate sound insulation between the two properties.
56. At this point the Council had decided to take no further action under both Anti-Social Behaviour, Crime and Policing Act and Environmental Health legislation. However, it did not clearly explain this to Mr X or clearly provide the reasons why. At this stage, it would also have been an appropriate time to inform Mr X of his right to take private action. Mr X formally complained in April 2022 asking the Council to outline its position, including his request for the Community Trigger. The Council delayed responding and when it did it failed to explain why it was taking no further action under both sets of legislation. All of this is fault and not in line with our guidance on good administrative practice.
57. The Council undertook further noise monitoring in October 2022 and considered the sound insulation has had some impact on the level of noise as the levels were lower than those recorded earlier. Following further reports from Mr X the Council asked him to submit a victim impact statement in November 2022 with a view to the Council seeking possession. In February 2023 the Council confirmed it has issued possession proceedings against Mr X’s neighbour. As the Council is acting in its role as a social landlord, I cannot comment any further about this.
58. Mr X requested a Community Trigger in 2021 and 2022. A person who reports ASB to the Council but is dissatisfied with the response may request a review under the Community Trigger process. Statutory guidance states councils should publish Community Trigger requests and review outcome statistics. The Council is unable to provide statistics prior to 2021 because of a ‘system change’. That is fault and not in line with statutory guidance.
59. The Council did not respond to Mr X’s request for a Community Trigger. That is fault. It told us that Mr X did not meet the criteria under its policy because it was still investigating the matter. However, neither legislation nor statutory guidance make mention that a complaint must be closed or completed before accepting a Community Trigger request. Statutory guidance states an individual may request a review if the problem persists or there has been no or an inadequate response. The threshold for a Community Trigger is based on three complaints, made to any partner, within the last six months. The Council’s policy and its decision to decline Ms X’s community trigger request because of the current action it was taking is not in accordance with the published criteria and is fault. Given the Council has investigated Mr X’s complaints for nearly two years at the time of writing without resolution, it appears impossible for Mr X to use the Community Trigger with the Council’s current policy. These faults have caused Mr X distress, frustration and uncertainty.
60. The ASB and noise reported by Mr X to the Council has clearly caused him and his family significant distress. The Council has acknowledged this on more than one occasion after he submitted evidence to it. The Council has investigated this for almost two years using various legislation, including consideration of tenancy breaches without coming to any meaningful resolution. I note the Council has now started possession proceedings against Mr X’s neighbour however that does not absolve it of its responsibility with regards to investigating any ongoing ASB and noise. There are an extensive number of reports and evidential files submitted by Mr X following the CPN without evidence from the Council formally telling Mr X why it had decided not to take further action at that point. The failure to properly communicate its decision making is fault and is causing Mr X and his family distress, uncertainty and time and trouble. This injustice is ongoing.
61. It is not for the Ombudsman to decide whether the ASB and noise warrants further action. However, I have made recommendations below to ensure the Council decides what if any further action it intends to take without further delay.

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Agreed action

62. The Council agreed within one month of the final decision to:
• apologise to Mr X and his family and pay him £300 to acknowledge the distress, uncertainty and time and trouble caused by the Council’s failure to adequately communicate its decision making in response to his reports of ASB and noise from his neighbours since April 2021.
• write to Mr X informing him what, if any, action it intends to take going forward under both Anti-Social Behaviour, Crime and Policing Act and Environmental Health legislation. It should clearly outline what legislation it has considered and the consideration of Mr X’s evidence. If it decides not to take further action under this legislation it should clearly explain why and inform Mr X of his right to take private action.
• reconsider Mr X’s request for the Community Trigger.
63. Within two months of the final decision the Council should review its ASB policy around the Community Trigger to ensure its local threshold is in line with statutory guidance.
64. The Council should provide us with evidence it has complied with the above actions.

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Final decision

65. I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman