Summary: Ms X complained that the Council has failed to take adequate action to address noise and antisocial behaviour by her neighbours. We found the Council properly investigated the issues. However, it was at fault in failing to properly consider one of her requests for a multi-agency antisocial behaviour case review. In recognition of the injustice caused, the Council has agreed to apologise to Ms X and make a payment to her.

The complaint

1. Ms X complains that the Council has failed to take adequate action to address noise and antisocial behaviour by her neighbours. As a result, she has suffered distress and is unable to peacefully enjoy her home.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)

Back to top

What I have and have not investigated

5. I have investigated Ms X’s complaints about how the Council handled her reports of noise nuisance and antisocial behaviour between February 2021 and March 2023 when she complained to us.

Back to top

How I considered this complaint

6. I have considered all the information provided by Ms X, made enquiries of the Council and considered its comments and the documents it provided.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legal and administrative background

Statutory noise nuisance

8. Under the Environmental Protection Act 1990 councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
9. 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.

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.
12. In investigating reports of problem noise, councils should follow non-statutory guidance issued by government on “Neighbourhood Noise Policies and Practice for Local Authorities”. The government guidance says, when deciding whether a noise problem amounts to a statutory nuisance, regard should be had to a number of factors, including:

• the level and type of noise and its duration;
• the time of day or night when the noise occurs;
• any particular sensitivity of the complainant (councils cannot take account that certain individuals affected by unwanted noise may have a greater sensitivity to it); and
• the number of persons affected.

13. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will use their professional judgement to decide whether a statutory nuisance exists. If they are satisfied a statutory nuisance exists, they are required to serve an abatement notice. This requires the person 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.
14. 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.

Antisocial behaviour

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

• as an environmental health issue, where the complaint is about noise or pollution, or
• using their powers under the Anti-social Behaviour, Crime and Policing Act 2014. These include civil injunctions and community protection notices.

17. Section 2 of the Anti-Social Behaviour, Crime and Policing Act 2014 (the 2014 Act) defines anti-social behaviour as:
1. conduct that has caused, or is likely to cause, harassment, alarm or distress to any person;
2. conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or;
3. conduct capable of causing housing related nuisance or annoyance to any person.

ASB Case Review/ Community Trigger

18. The 2014 Act introduced a mechanism to review the handling of complaints of ASB - the Anti-social Behaviour Case Review, often known as the ‘Community Trigger’ process.
19. 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. If so, 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.
20. 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.

Key facts

21. Ms X has been complaining to the Council since 2020 about noise and antisocial behaviour by her neighbours.

2021

22. In February 2021 Ms X complained to the Council about her neighbours’ dogs barking and running free in the street and churchyard. An officer from the Community Safety/Environmental Health team wrote to her saying the Council would begin a noise investigation and asked her to complete noise diaries. The officer wrote to the neighbours informing them of the investigation. He also contacted the Animal Welfare team about the dogs roaming around the area.
23. The animal welfare officer wrote to Ms X asking whether she had any video footage of the dogs wandering around off lead. She said officers they had visited the area several times and never witnessed this.
24. In March 2021 Ms X reported ‘constant barking’ from her neighbours’ dogs.
25. On 4 March the community safety officer (CSO) explained that the Council needed evidence to consider taking further action. He said a noise monitor could be installed in Ms X’s property but there was a waiting list. He said officers would visit to try to witness the noise and Ms X should telephone when the noise was ongoing.
26. On 30 March officers visited the area twice at the times requested by Ms X but did not hear any barking. Ms X said she had been experiencing barking all weekend every weekend for a year. She said the dogs had been barking for two hours that day but, when officers visited, they were quiet.
27. On 31 March Ms X applied to the Council to activate the community trigger.
28. On 1 April an officer completed a further visit. A dog was in the front garden throughout her visit but was not barking.
29. On 7 April an officer completed a fourth visit but heard no barking. The same day the CSO told Ms X he would carry out a survey of local residents and assess the returns. If there was a need to visit the neighbours he would do so.
30. The Council also wrote to Ms X about her application to activate the community trigger. It said her application did not meet the criteria.
31. On 9 April the Council sent out a survey to residents asking them to report any antisocial behaviour.
32. Ms X sent the Council video footage of her neighbours’ dogs off the lead in the churchyard. She said they barked at people jogging past or when other dogs walked past. The CSO explained that the level, frequency and duration of the barking would not amount to a statutory nuisance because the threshold was high.
33. The Council received three responses to the survey. The CSO considered there was not enough new information to take any further action. He informed Ms X of the outcome and asked her to continue to report any issues.
34. On 17 May the CSO discussed the situation with the police.
35. On 4 June the Council installed noise monitoring equipment in Ms X’s home. It remained in place until 11 June. A CSO analysed the recordings and found there was insufficient evidence of a statutory nuisance. She wrote to Ms X explaining this and said that, as there was insufficient evidence to consider further action, the case would be closed. The officer advised Ms X to contact the Council again if the noise worsened or there was a change in circumstances.
36. In September 2021 Ms X again reported the neighbours’ dogs barking and running off lead near her house. She also reported loud parties spilling into the street, the family playing golf and cricket in the churchyard and family members fighting and vomiting in the street. An officer discussed the issues with Ms X.
37. On 1 October Ms X submitted diary sheets reporting 16 incidents of dogs barking or running off lead in public areas outside her home.
38. On 7 October a senior community safety officer wrote to Ms X explaining that a CSO had considered the incidents and the powers available to the Council under the Antisocial Behaviour Crime and Policing Act 2014. The only power available to use in the current situation would be a community protection notice. She set out the test for this power and explained why the incidents did not meet the test. She explained that, as there was no evidence of unreasonable behaviour, it would not be appropriate for the Council to take enforcement action. She said the investigation was now closed and the Council would only reconsider the matter if there was a material change in what was being reported, an escalation in matters or evidence of a wider impact on the community.

2022

39. In June 2022 Ms X again complained about dogs barking and running loose. She asked for a CCTV camera to be installed in the area. An officer from Public Protection, Officer B, asked Ms X to complete diary sheets and also referred the matter to the Animal Welfare team.
40. On 13 June 2022 Ms X made another application for the community trigger.
41. Officer B wrote to Ms X on 16 June in relation to the issues she had reported. He explained that, as Ms X had also reported these incidents to the police, he would liaise with them to determine what course of action they had taken.
42. On 6 July the officer wrote to Ms X again explaining he had spoken to the police in relation to her request for CCTV. The police confirmed they considered the incidents to be general disorder and would not be making a request for the installation of a camera.
43. On 16, 17 and 18 July Ms X reported incidents of the neighbour and his dogs running across her lawn. The dogs were barking and the neighbour was gesturing in front of her security camera. She also reported the family dancing outside her back door and making noise. She said the level of harassment was increasing. She sent several videos to the Council and the police.
44. On 18 July Ms X again applied for the community trigger saying the antisocial behaviour had been going on for two and a half years. She said she felt afraid to go out as she was forced to walk within the view of the neighbours and could not relax at home.
45. Officer B wrote to Ms X saying he had viewed all the recordings she had sent but, before he considered whether there was anything the Council could do, he would need to speak to the police. He said he was aware Ms X had also reported the issues to them and the Council could not duplicate any investigation they were carrying out.
46. On 19 July Ms X complained to the Council about its handling of her concerns.
47. On 20 and 22 July Ms X reported incidents of her neighbour gesturing and waving his dog’s paw at her security camera.
48. Ofc B wrote to Ms X saying he had spoken to the police who were investigating the issues as harassment. He explained that, although the issues she reported could be investigated as antisocial behaviour by the Council or the police, harassment is a criminal offence and is therefore a matter for the police. As the police had decided to investigate the matter as harassment, they were better placed to deal with the matter for the time being so the Council would take no action.
49. In August the Council again installed noise monitoring equipment in Ms X’s property.
50. On 8 August the Council responded to Ms X’s complaint at stage 1 of its complaints process. Ms X was dissatisfied with the response and escalated her complaint to stage 2. The Council responded at stage 2 on 6 September.
51. On 15 September a CSO wrote to Ms X explaining she had reviewed the recordings from the noise monitoring equipment and there was insufficient evidence to identify a nuisance.
52. On 6 October Ms X reported various incidents of dogs barking and being off lead since 20 September. She wanted to know why, when she was reporting these issues as antisocial behaviour, the council was turning them into a noise nuisance complaint. The Council explained that the term ‘antisocial behaviour’ is frequently used to describe a wide range of activities that can have an adverse effect on individuals and/or the community. However, officers would choose the legislation which most specifically matches the nature of the complaint and, in this case, this was the Environmental Protection Act relating to statutory noise nuisance.
53. On 5 December officers from the Community and Environmental Health team met to review the issues Ms X had reported.

2023

54. On 19 January 2023 the Council wrote to Ms X with the outcome of the review. It explained the action it had taken including officer visits and the installation of noise monitoring equipment but confirmed that neither of these had provided sufficient evidence of a statutory nuisance or significant antisocial behaviour. The Council proposed undertaking a final installation of noise monitoring equipment for a period of two to three weeks. This would maximise the opportunity for Ms X to provide evidence of any noise issues which could be investigated further if necessary. The Council also confirmed that the police were undertaking a separate investigation into the allegations of harassment.
55. Following receipt of the Council’s letter, Ms X made a complaint to the Council. She then complained to us.

Analysis

56. I am satisfied that the Council properly investigated Ms X’s complaints of noise and antisocial behaviour by her neighbours. Officers considered video footage and diary sheets provided by Ms X. They also sent a survey to local residents but this did not result in additional evidence.
57. Officers visited the area on several occasions but were unable to witness the dogs barking. The Council’s policy states that three officer visits will be carried out. However, it says officers made 18 visits over the period in question. The visits were carried out at times Mrs X said the noise generally occurred, often outside normal working hours.
58. Officers also installed noise monitoring equipment on three occasions but decided the recordings did not provide sufficient evidence to substantiate a statutory nuisance or significant antisocial behaviour. This was a matter for officers’ professional judgement.
59. Having considered all the evidence, the Council decided to close the case. In the absence of administrative fault, there are no grounds to question that decision.
60. Officers appropriately liaised with the animal welfare team which undertook additional patrols in the area and issued fixed penalty notices for dog fouling and a dog being of a lead in the cemetery.
61. The Council reopened the case in July 2022 when Ms X made allegations of harassment. As the police were treating this as a criminal offence it was appropriate for them to take the lead and for the Council to take a secondary role. We would not expect the Council to duplicate action the police have taken. However, we would expect it to keep the matter under review, liaise with the police, and consider whether it should take any action using its own powers in conjunction with any action being taken by the police.
62. I am satisfied that the Council viewed the video footage provided by Ms X, discussed the situation with her and liaised with the police. It completed an internal review of the issues raised by Ms X in December 2022 and discussed the issues with the police as part of that review.

ASB Case review (‘community trigger’)

63. When Ms X applied to activate the community trigger in April 2021, the Council responded stating, “you have acknowledged that action has been taken by [sic] Council… For this reason I must advise that these reports do not meet the criteria for the Community Trigger as appropriate action has been taken by relevant agencies”.
64. I find the Council was at fault in failing to apply the correct test for the community trigger. It should first have considered whether the threshold was met. The only threshold is the number of incidents reported within a time frame. If the complainant is not satisfied with the response by agencies, they can request a review whether or not their reports have been investigated and acted on.
65. Home Office community trigger guidance says,

“Each local area sets a threshold which must be met for the trigger to be used. The threshold must include:

• the frequency of complaints
• effectiveness of the response
• potential harm to the victim or victims making the complaint.

The threshold is about the incidents reported, not whether the agency responded. The threshold should be no higher than 3 complaints, but agencies may choose to set a lower threshold. If the qualifying complaints were made, a case review must be held to then determine the adequacy of the agency responses”.

66. If the Council decided the threshold was met in Ms X’s case, it should have then gone on to review the agencies’ response to her allegations of antisocial behaviour to decide whether the response was adequate and whether additional actions could be taken.
67. In response to a draft of this decision, the Council said the statutory guidance in force at the time stated, firstly, that the threshold is set by the local authority and, secondly, it could consider the adequacy of the response when setting the threshold and when deciding whether that threshold was met. The Council says this approach was adopted in its procedure and the procedure was properly applied.
68. The statutory guidance in force at the time stated that the threshold was “To be defined by the local agencies, but not more than three complaints in the previous six-month period…May also take account of:
• the persistence of the anti-social behaviour;
• the harm or potential harm caused by the anti-social behaviour;
• the adequacy of response to the anti-social behaviour.”
69. The Council’s procedure at the time stated, “in order for the request to qualify as a community trigger they must have made at least 3 complaints within the last 6 months… And no/inadequate response has been made”.
70. The Ombudsman’s view is that “the adequacy of the response” referred to in the statutory guidance meant whether the applicant considered the response to have been adequate. Whether their reports had been investigated is not relevant to whether the case met the threshold.
71. I therefore find the Council’s policy at the time did not apply the correct test when deciding whether a case met the threshold for an ASB case review.
72. In this case, the Council and the police had investigated Ms X’s reports, but she was clearly not satisfied with the outcome. So, the Council should have accepted her request to activate the community trigger.
73. Because of the council’s failure to do so, Ms X was denied the opportunity to have a multi-agency case review under the community trigger procedure. This caused her an injustice as she was left with uncertainty about whether a different outcome may have been reached if a review had been held.
74. Ms X requested a community trigger review again in June and July 2022. The Council accepted at stage 1 of its complaints process in August 2022 that these applications were not processed correctly and apologised for this. However, it said “the reviews have now been carried out and unfortunately neither of your activations met the minimum criteria”. In its stage 2 response the Council again said, “neither application was considered to meet the criteria for the activation of the community trigger”.
75. The Council has explained that, as regards Ms X’s application in June 2022, she reported incidents on 2, 11 and 12 June. However, the first two reports related to the same incident, so it categorised these as a single incident. There are no grounds to criticise this. So, I do not question the Council’s decision that the application did not meet the threshold to activate the community trigger.
76. As regards Ms X’s application in July 2022, she reported incidents on 15, 16 and 18 July. The Council has explained that the first two reports were effectively the same report of harassment made to two separate agencies, the Council and the police. It therefore considers they did not constitute two separate incidents. I find no grounds to criticise the Council’s decision that the threshold was therefore not met.
77. Although the Council accepts the applications were not processed correctly in June and July 2022, it reviewed them in August 2022 and decided they did not meet the threshold. So, I do not consider any injustice was caused by any failings in the process as this did not affect the outcome.

Back to top

Agreed action

78. The Council has agreed that, within one month, it will:
• apologise to Ms X for failing to properly consider her request for a community trigger review in April 2021 and make a symbolic payment of £250 in recognition of the injustice caused;
• remind relevant staff about the correct threshold for the antisocial behaviour case review procedure; and
• write to Ms X explaining how to apply for an ASB case review as the Council is no longer responsible for dealing with the initial application stage.
79. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

80. I find the Council properly investigated Ms X’s reports of antisocial behaviour and noise nuisance. However, it was at fault in failing to properly consider her request for a community trigger review in April 2021, causing her an injustice.
81. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Back to top

Investigator's decision on behalf of the Ombudsman