Summary: Mr X complained the Council failed to properly investigate his complaints about antisocial behaviour and noise nuisance from his neighbours. We found fault with the Council for delaying its investigation into noise nuisance. We also found fault with the Council failing to investigate Mr X’s concerns about antisocial behaviour. The Council agreed to open an investigation into antisocial behaviour by Mr X’s neighbours, provide training to staff about investigating noise nuisance, apologise to Mr X and pay him £750 for the prolonged frustration, inconvenience and distress caused.

The complaint

1. Mr X complained the Council failed to properly investigate his complaints about antisocial behaviour from his neighbours.
2. Mr X also complained about the Council’s failure to properly consider his noise nuisance complaint.
3. Mr X says the Council’s failure to investigate antisocial behaviour and noise nuisance has resulted in a continued impact from their neighbours causing distress and anxiety. Mr X says the actions of his neighbours have also resulted in them leaving their home to stay in a hotel to escape the antisocial behaviour.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We 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)
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 have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
8. Mr X provided comments on my draft decision. I considered his comments before making my final decision.

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What I found

Statutory Noise Nuisance

9. The Environmental Protection Act 1990 (EPA) places a duty on the Council to investigate any complaints of ‘statutory nuisance’. Statutory nuisance is a term commonly applied to the impact of noise from a property. For a noise to amount to a statutory nuisance it must do one of the following:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other property
• Injure health or be likely to injure health
10. There is no set level at which noise becomes a statutory nuisance. The Council’s role is to make a judgement considering several factors such as the activity, locality, time of day, frequency and duration of the noise.
11. The Council is required to investigate complaints of noise nuisance. It will gather evidence to find out whether the noise is causing a statutory nuisance. If it finds the noise is a statutory nuisance it must take action to stop it.

Antisocial Behaviour

12. The Antisocial Behaviour, Crime and Policing Act 2014 introduced significant changes to the way councils, police and other agencies respond to antisocial behaviour (ASB). This came into effect in October 2014.
13. Under this Act the Council can issue a Community Protection Notice (CPN) if it has previously given the person or body concerned a written warning and the officer is satisfied that;
• the conduct of the individual or body is having a harmful effect, of a persistent or continuing nature, on the quality of life of those in the locality, and
• the conduct is unreasonable.
14. The notice will direct the individual, business or organisation responsible to stop causing the problem and it could also require the person responsible to take reasonable steps to ensure that it does not occur again.

Council’s Antisocial behaviour and environmental policy

15. The Council’s antisocial behaviour policy details how the Council will investigate matters about antisocial behaviour, under the Anti-Social Behaviour, Crime and Policing Act 2014, and statutory noise nuisance, under the Environmental Protection Act 1990.
16. The Council’s policy says examples of antisocial behaviour can include noise nuisance, threats or harassment and depositing of waste materials or littering.
17. The Council’s policy clarifies that not all noise is antisocial behaviour or a noise nuisance. The Council said noises that arise out of the ordinary and reasonable use of a property cannot be subject to enforcement action. The Council says it will not investigate noises caused by heavy footfalls, slamming doors, general talking, toilets flushing or children playing.
18. The Council says it will assess the seriousness of any antisocial behaviour or environmental nuisances, including noise nuisance, reported to it. The Council says its will fully investigate a matter and use the powers at its disposal to resolve a matter. The Council says it will explain to a person why it cannot act if it feels there is no action it can take.
19. The Council’s policy says the powers available to resolve antisocial behaviour matters include mediation, acceptable behaviour contracts, injunctions, Community Protection Warnings and Notices.
20. The Council says it will report any criminal matter to the police quickly.

What happened

21. On 20 August 2020, Mr X contacted the Council about noise from his upstairs neighbours. The Council advised the noise reported by Mr X was likely domestic noise but said it would install a noise recording device to check. The Council did not install this device.
22. Mr X reported further noise nuisance from his neighbours at the end of August and start of September 2020. The Council spoke with Mr X’s neighbours who advised they are not trying to make noise but pointed to poor sound insulation. The Council told Mr X it would arrange to install a noise recording device. The Council did not install this device.
23. Following further contacts from Mr X on 22 October 2020, 17 November 2020, 15 December 2020 and January 2021 to report noise nuisance from his neighbours. The Council promised installation of a noise recording device on each occasion but did not follow through on this. Mr X also met with the Council at the start of 2021 and provided a list of events about noise nuisance from his upstairs neighbours.
24. In February 2021, Mr X contracted a solicitor to act on his behalf. Mr X also contacted the Council on 3 February 2021 who again offered to install noise monitoring equipment. The Council installed this on 10 February 2021.
25. The Council removed the noise recording device in March 2021 and confirmed it would provide feedback about the noise recordings by 23 April 2021.
26. On 17 April 2021, a Council Officer attended Mr X’s property to try to witness the noise nuisance. The Council Officer could not go inside Mr X’s property because of the restrictions in place for the Covid-19 pandemic. The Council Officer could not hear any noise from outside but asked Mr X’s neighbour to only use the washing machine at reasonable hours.
27. On 28 April 2021, the Council wrote to Mr X to advise most of the noise reported by Mr X related to domestic noise such as use of the washing machine and from children. The Council said it could not enforce this as a noise nuisance but would await the result of the noise recording analysis.
28. Mr X’s solicitors reported noise nuisance and antisocial behaviour to the Council and Police on 28 April 2021. The Council liaised with Mr X’s solicitors and said a washing machine was domestic noise so could not be considered a statutory noise nuisance. Mr X’s solicitors disputed the Council’s position that domestic noise could never be a statutory noise nuisance throughout May 2021.
29. A Council Officer attended Mr X’s property on 30 May 2021 and witnessed a “low humming noise” but did not witness a statutory noise nuisance.
30. On 3 June 2021, Mr X’s solicitors wrote to the Council and said the Council had not provided feedback on the noise recordings. The Council reiterated its position that domestic noise could be a statutory noise nuisance and the Council should be investigating such matters.
31. Mr X’s solicitors and the Council continued to liaise over the noise nuisance complaint with Mr X’s solicitors providing two separate logs of noise nuisance to the Council in June 2021 and July 2021.
32. On 14 July 2021, Mr X told the Council his neighbour had started leaving rubbish outside his bedroom window.
33. On 27 July 2021, Mr X complained to the Council that he had told the Council about noise nuisance, had provided diary sheets and evidence but it was not taking any action. The Council responded to advise it must witness a noise nuisance in person before it can take enforcement action.
34. Mr X’s solicitors wrote to the Council on 27 July 2021 as well. Mr X’s solicitors said Mr X continues to experience noise nuisance from his neighbours. Mr X’s solicitors said Mr X’s neighbours have now started urinating in his garden, throwing rubbish into his garden and leaving waste on his doorstep. The solicitors reiterated its stance that domestic noise could be a statutory noise nuisance and queried why the Council had provided no feedback on the noise recordings. The Council passed this matter onto its legal counsel for consideration.
35. The Council confirmed it had lodged an official complaint from Mr X on 17 August 2021 following his contact on 27 July 2021. The Council said it would respond by 1 September 2021.
36. On 19 August 2021, Mr X reported further issues about his neighbours throwing rubbish at his property. The Council told Mr X to report this to the police. Mr X’s solicitors complained the Council was refusing to investigate any other issues than noise nuisance.
37. Mr X reported further issues of his neighbours throwing rubbish at his property on 31 August 2021 and 7 September 2021.
38. The Council contacted the Police about its investigation on 10 September 2021. The Police told the Council on 13 September 2021 that it does not have powers to deal with antisocial behaviour and recommended the Council follows this up.
39. On 24 September 2021, the Council provided Mr X with a Stage 1 complaint response. The Council said:
• It had investigated Mr X’s concerns about noise nuisance from his neighbours.
• Mr X’s complaint related to noise from a washing machine, banging, stamping and screaming of children. The Council said it had not been able to witness a statutory noise nuisance despite visits and installing noise recording equipment.
• It considered the noise was domestic noise so it could not take any enforcement action.
40. The Council met with the police on 15 October 2021 to discuss the issues surrounding Mr X’s complaint. The Council agreed to install noise monitoring equipment while the Police agreed to review any crime linked complaints.
41. On 9 November 2021, the Council promised to install noise monitoring equipment into Mr X’s property.
42. In November 2021, Mr X’s solicitors also asked the Council to advance with arranging mediation between Mr X and his neighbours.
43. On 12 December 2021, the Council held a meeting with its legal counsel and agreed to install two sound recording devices into Mr X’s property and to then approach Mr X’s neighbours for mediation.
44. The Council installed the sound recording devices on 30 December 2021. During installation of the sound recording devices the Council Officer witnessed the noise caused by the washing machine and noted it sounded like “a helicopter was landing in their living room”. The Council Officer sought internal advice. The advice was to arrange mediation.
45. Mr X contacted the Council on 25 January 2022 to complain that it had only installed only one sound recording device and his neighbours had prior warning of this.
46. On 30 January 2022, the Council Officer wrote to its legal counsel and police and said they had not witnessed a statutory noise nuisance but this could be harassment and sought advice. The Police said it had found no criminal offences. The Council said in the absence of any statutory noise nuisance or criminal offences they should proceed with mediation.
47. The Council Officer told Mr X they did not witness a statutory noise nuisance. Mr X told his solicitor about this who contacted the Council on 3 February 2022 to seek a review of the matter.
48. The Council contacted Mr X’s neighbours on 1 and 8 February 2022 to seek mediation.
49. Mr X’s solicitors chased the Council for a response on 10 February 2022, 18 February 2022, 23 February 2022, 4 March 2022, 21 March 2022, 6 April 2022 and 20 April 2022. Mr X’s solicitors highlighted to the Council that Mr X’s complaint was not just about noise nuisance.
50. The Council told Mr X’s solicitors it would be holding a meeting on 25 April 2022 to discuss the way forwards. Mr X’s solicitors asked for an update on 6 May 2022.
51. The Council responded on 10 May 2022 to advise it had not witnessed a statutory noise nuisance enabling it to take any action under the Environmental Protection Act 1990. The Council said it had offered mediation to Mr X’s neighbour but they needed to accept this and the Council could not force this on them.
52. Mr X’s solicitors said the Council was ignoring the noise because it was domestic but this noise was excessive. Mr X’s solicitors also repeated that Mr X’s complaint was not just about noise nuisance. The Council reiterated that it did not have enough evidence to take enforcement action and it cannot compel Mr X’s neighbours to take part in mediation.
53. Mr X’s solicitors made a formal request for a Stage 2 complaint on 17 June 2022. The Council promised a response by 6 July 2022 before saying it needed more time and would provide a response by 21 July 2022.
54. The Council provided its Stage 2 complaint response on 20 July 2022. The Council said:
• It does not have enough evidence to prove a statutory noise nuisance.
• It’s officers had said you could hear conversations between the flats so the quality of the building could be having an impact on the effect of the noise.
• It had considered other matters including playing of children and positioning of waste but its position remained unchanged.
• It would contact Mr X’s neighbours to purse mediation if Mr X wanted.

Analysis

Noise nuisance

55. The Council has a duty under the Environmental Protection Act 1990 to investigate complaints about statutory noise nuisance.
56. Mr X first brought his complaint to the Council in August 2020.
57. The Council took a suitable initial step by speaking with Mr X’s neighbours about the noise nuisance. The Council tried to resolve the complaint informally, albeit without success. I do not find fault with the Council trying this first.
58. From August 2020 to February 2021, Mr X made repeated contacts with the Council to report a noise nuisance from his neighbours. During this time, the Council promised to install noise monitoring equipment into Mr X’s property on six occasions without following through on this offer. This was fault. This fault caused a delay of six months in gathering evidence of Mr X’s noise nuisance complaints.
59. After the Council installed the noise monitoring equipment in February 2021 it promised to analyse the recordings and provide feedback to Mr X. Despite repeated chasers by Mr X, and his solicitors, the Council failed to provide feedback of the noise recordings. The Council has also failed to evidence any analysis of these noise recordings in its submissions to the Ombudsman.
60. On the evidence seen, the Council failed to properly analyse the noise recordings taken in February 2021; this was fault.
61. From 20 August 2020 until 30 December 2021, the Council attended Mr X’s property on three occasions to try to witness a noise nuisance. Aside from these attempts, the Council did not take suitable steps to investigate Mr X’s concerns. The Council failed to follow through on installation of noise recording equipment on repeat occasions and when it did, it failed to show any analysis of the noise recorded. It is only following the Council installing the noise recording device on 30 December 2021 that the Council has taken any suitable steps to investigate Mr X’s concerns. This was fault. This is a delay of 16 months causing lost opportunity to investigate Mr X’s concerns.
62. The Council’s main rationale behind its lack of investigation into Mr X’s complaint is that it cannot investigate domestic noise as a cause for a noise nuisance. The Environmental Protection Act 1990 makes no reference to domestic noise being unable to cause a statutory noise nuisance. The requirements of what forms a statutory noise nuisance is any noise that amounts to an unreasonable and substantial interference with the use or enjoyment of a home or is likely to injure health. There exists no restriction to investigate noise simply because its cause is domestic in nature.
63. While a Council must give consideration to the type of noise when deciding if a statutory noise nuisance exists, it cannot refuse to investigate a noise because of the cause. Under many circumstances, noise from children playing or a washing machine may unlikely be a statutory noise nuisance, but you cannot say that noise from these source can never be a statutory noise nuisance. Refusal by the Council to investigate a noise simply because it could be classified as domestic was fault.
64. It is of note the Council’s policy is correct in that it states “noises that arise out of ordinary and reasonable use of a property cannot be subject to enforcement action”. The emphasis of the Council’s policy is through ordinary and reasonable use. The Council’s policy does not prevent it from investigating all domestic noise.
65. Following installation of the noise recording device on 30 December 2021, the Council has shown commentary on the noise recordings and reaching a decision that no statutory noise nuisance existed. The Council supported this decision with its officers saying they did not witness a statutory noise nuisance in person during their visits.
66. The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. The Ombudsman must decide if the Council has considered the relevant legislation and policies in making its decision. If the Council has considered the relevant policies and reached a suitable decision in line with these policies, the Ombudsman cannot find fault.
67. I have noted my concerns in paragraphs 62 and 63 about the Council’s approach to domestic noise before 2022. But the Council has sought legal counsel in 2022 about the noise nuisance and completed a suitable investigation into the noise by installing noise recording equipment and analysing the noise. The Council has made a decision at this point that it could not witness a statutory noise nuisance following its policy and the legislation. We cannot find fault with the Council in this instance.

Other antisocial behaviour

68. Mr X complained to the Council about other issues with his neighbours aside from noise nuisance.
69. The Crime and Policing Act 2014 gave powers to Councils to tackle acts of antisocial behaviour where conduct is having a harmful affect to others and is of a persistent nature. The Council’s antisocial behaviour policy confirms it has these powers at its disposal and provides examples of antisocial behaviour it may look to tackle. One example within the Council’s policy is depositing waste materials or littering.
70. Mr X first contacted the Council about antisocial behaviour, other than noise nuisance, on 14 July 2021. On this date, Mr X told the Council that his neighbour had started leaving rubbish outside his bedroom window.
71. Mr X, or his solicitors acting on his behalf, brought the Council’s attention to antisocial behaviour by his neighbours through depositing or waste and littering in his garden or outside his property on at least a further six occasions, not including chasers to contacts, since 14 July 2021.
72. The Council has failed to investigate Mr X’s concerns about antisocial behaviour in the form of depositing or waste materials or littering from his neighbours despite repeated requests. This was fault. This fault had caused 17 months of lost opportunity to investigate Mr X’s concerns.
73. In the Council’s Stage 2 complaint response it said it considered Mr X’s concerns about positioning of waste but the Council has provided no evidence of completing any investigations into this matter.
74. The Council should open an investigation into Mr X’s concerns of antisocial behaviour, in the form of depositing waste materials or littering, by his neighbours.

Our guidance on remedies

75. We expect bodies in jurisdiction to treat people fairly and with respect, and not to expose the public to unnecessary distress, harm or risk as a result of their actions or inactions. Such injustice cannot generally be remedied by a payment, so we usually seek a symbolic amount to acknowledge the impact of fault on the complainant. The amount depends on the circumstances of the case.
76. When we assess distress, we consider the complainant’s individual circumstances (such as their state of health and age). In reaching a view on remedy we will consider all the circumstances including:
• the severity of the distress;
• the length of time involved;
• the number of people affected (for example, members of the complainant’s family as well as the complainant);
• whether the person affected is vulnerable and affected by distress more severely than most people; and
• any relevant professional opinion about the effects on any individual.
77. A remedy payment for distress is often a moderate sum of between £100 and £300. In cases where the distress was severe or prolonged, up to £1,000 may be justified. Exceptionally, we may recommend more than this.
78. In the circumstances of Mr X’s complaint, the Council delayed for 16 months delays in handling his noise nuisance complaint. During this time it also promised but failed to complete installing noise recording equipment on six occasions.
79. The Council also failed to investigate Mr X’s concerns about antisocial behaviour caused by littering and depositing of waste for 17 months from July 2021 to the date of the Ombudsman’s final decision.
80. This fault, and resulting delays, by the Council has caused a lost opportunity at identify potential statutory noise nuisance and antisocial behaviour. This has caused Mr X, and his family, avoidable distress, frustration and inconvenience.
81. I consider the injustice Mr X, and his family, experienced because of the Council’s fault was prolonged. However, given the Council has found no statutory noise nuisance existed, in 2022, and I cannot confirm if antisocial behaviour is occurring before the Council’s investigation, I cannot determine the distress was severe. For this reason, we consider the Council should apologise to Mrs X and provide a payment of £750.

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Agreed action

82. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Mr X and a payment of £750 to reflect the lost opportunity and the avoidable distress, frustration and inconvenience caused to Mr X and his family.
• Open an investigation into Mr X’s concerns of antisocial behaviour, in the form of depositing of waste materials or littering, by his neighbours.
83. Within three months of the Ombudsman’s final decision the Council should:
• Provide training to staff about investigating noise nuisance about domestic noise. Namely, that domestic noise can still form a statutory noise nuisance if it unreasonably and substantially interferes with the use or enjoyment of a home.
84. The Council should provide us with evidence it has complied with the above actions.

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Final decision

85. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman