Summary: Ms X complained about the Council’s failure to take appropriate action in response to her complaints about noise and anti-social behaviour outside her property. The Council has properly investigated Ms X’s reports and concluded there is insufficient evidence to take further action. However, it has not properly communicated this to Ms X and has not kept her regularly updated. The Council agreed to apologise to Ms X and take action to ensure it keeps her updated going forward.

The complaint

1. Ms X complained the Council has failed to take appropriate action in response to her complaints about noise and anti-social behaviour (ASB) in a market square outside her property. She said the Council carried out a Community Trigger in December 2022, but the situation is no better.
2. Ms X said the noise and ASB is causing her distress and affecting her mental health.

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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 significant injustice, or that could cause injustice to others in the future 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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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What I have and have not investigated

6. I have investigated events after December 2022 up until Ms X complained to us in June 2023. We have already investigated Ms X’s complaints about the same noise and ASB concerns prior to December 2022. Our previous investigation resulted in the Council carrying out the Community Trigger. I have therefore only considered events after the conclusion of our previous investigation.

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How I considered this complaint

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

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What I found

Anti-social behaviour

10. Councils have a general duty to take action to tackle anti-social behaviour (ASB). But ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation. For example the Council 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.
11. 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.
12. Before issuing a CPN a council must first issue the recipient with a formal written warning, with timescales for compliance,. These warnings are often called community protection warnings (CPW).

Statutory nuisance

13. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
14. 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.
15. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
16. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.

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.
18. If the threshold has been met, 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.
19. We can only consider councils’ actions in an ASB case review. Any contribution made by other relevant bodies, such as the police, is not in our jurisdiction.

The Council’s guidance on ASB

20. The Council’s guidance outlines steps it takes to investigate concerns and reports of noise and ASB. The guidance includes how it communicates with complainants and victims during an investigation which is part of an agreed ‘ASB Service Standard’. It says it will:
• Keep victims regularly updated and informed of progress.
• Support all victims and witnesses until the case is closed and afterwards if appropriate.

What happened

Background

21. Ms X lives in a property which is next to a public square. Some years ago the Council moved its market to the public square where it has since remained. Ms X said she has been complaining about incidents of ASB and noise in the market square since 2020 when the market stalls were left permanently erected. Ms X says the main issue is youths using the space and market stalls to congregate and this causes her distress. She also said buskers regularly played outside her property with loud amplification.
22. Ms X complained to us in 2022 that the Council had failed to take any action in respect of the ASB around her property. We found the Council had tried to address the ASB but had not properly followed its guidance around keeping Ms X updated. We found however, that despite carrying out investigations the Council had not found any evidence which would have led it to take further action regarding the ASB.
23. Our previous investigation also found the Council had failed to properly consider Ms X’s request for a community trigger. Following the conclusion of our investigation the Council reviewed Ms X’s request and held a community trigger in December 2022.

Events since December 2022

24. This investigation looks at what has happened since the community trigger in December 2022 and Ms X’s continuing reports of ASB and noise outside her property. Following the community trigger review the chair of the panel wrote to Ms X and explained the panel’s conclusions. The panel found the Council had responded appropriately to Ms X’s concerns and was satisfied with its investigation. It did however make some recommendations to help support Ms X going forward. The recommendations were:
1. The Council should carry out a survey with local businesses and residents to establish whether the ASB and busking noise was affecting others.
2. For the Council to look at potential options for improving the layout of the market and the possibility of removing the stalls nearest Ms X’s property when the market was not open.
3. The Council provide Ms X with a single point of contact (SPOC). This would allow the SPOC to meet with the police and Ms X’s support workers to share information. At Ms X’s request the Council agreed to allocate a female officer as the SPOC.
4. To support Ms X with finding an alternative property if she wished.
5. That Ms X continue to report ASB and noise to the SPOC so the Council could continue investigating.
6. To keep Ms X’s case on the monthly ASB and vulnerability panel to monitor the recommendations and update Ms X as necessary.
25. The Council also gave Ms X access to an app which she could use to easily report instances of ASB and noise.
26. Since January 2023 Ms X has made in excess of 400 reports of ASB and noise to both the Council and the police. Many of the reports were about youths outside her property, drug use by the youths and about nuisance buskers in the area playing music too loud.
27. Records show the Council has continuously investigated Ms X’s concerns and it has explained to us the action it has taken both in regard to Ms X’s reports and the community trigger recommendations. The Council said:
• It has considered each of Ms X’s reports via the app but says many of the reports are not relevant or are not instances of ASB. For example, youths in a public place is not in itself ASB.
• It uses CCTV and patrol officers to attend when possible. As part of its partnership agreement, police officers also regularly patrol the area.
• Reports of drug use are for the police, however the police have not found evidence of drug use.
• It is aware of buskers in the area. Due to the character of the town, there are no restrictions on busking or any licence requirements. It has issued one busker with a community protection warning (CPW) for loud amplification.
• It has installed noise monitoring in Ms X’s property but the recordings did not reach a level of statutory nuisance or a level which would lead it to take further action.
• It discusses Ms X’s case each month at the vulnerability panel.
28. With regards to the community trigger recommendations the Council has advised the following for each point:
1. The Council’s survey found the majority of businesses and residents had no issue with busking and it has had no other complaints about regular ASB.
2. The market manager considered the layout and removal of the stalls but concluded it was not possible as the stalls are let on a daily basis. Due to the structure of the stalls it was not possible to partially remove them.
3. Ms X was originally assigned a female SPOC however she left the Council. The Council then allocated a male officer as it had no alternative.
4. It has offered Ms X assistance with moving home but she has declined help.
5. The Council considers all the reports Ms X submits via the app however it says it is not possible to respond in real time due to the sheer volume of reports. It served a CPW on one busker and on occasions officers have approached other buskers and asked them to reduce noise levels.
6. The case is continually discussed on a monthly basis at the ASB and vulnerability panel.
29. Ms X had complained to the Council in March 2023 about its failure to take action against the ASB and the buskers. The Council responded to Ms X explaining the ongoing action it was taking. It said it would continue to respond as appropriate to Ms X’s reports and would issue further CPWs to buskers if appropriate.
30. The Council told us there was no evidence which would lead it to take further action against buskers for noise. The noise monitoring did not identify noise levels which would constitute a statutory nuisance. It said there was insufficient evidence to take action around the reports of ASB. It said it continued to operate an open and ongoing investigation for Ms X and would consider taking further action in the future if evidence allowed.
31. Ms X remained unhappy and complained to us. She is unhappy no action is being taken against the noise and ASB. Ms X said she submits reports but does not receive any updates or results.

My findings

32. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the organisation made.
33. I have considered the steps taken by the Council since December 2022 following the community trigger in considering Ms X’s repeated complaints about ASB and noise.
34. The Council had several recommendations to comply with following the community trigger and as outlined in paragraph 27 I am satisfied it has complied. Ms X was allocated a SPOC and the Council has provided her with an app which enables her to report instances of ASB and noise whenever she wants. It considered whether other residents and businesses were affected by ASB and noise and concluded, based on its survey they were not. It also considered whether it was possible to rearrange the market and remove stalls but again, this was not possible. Records show the SPOC, the Council, the police and other agencies discuss Ms X’s case at the monthly ASB and vulnerability meeting. There is no fault in how the Council carried out the recommendations from the December 2022 community trigger.
35. In deciding whether to take further action regarding busking, the Council has considered Ms X’s reports, noise monitoring and reports from its officers who have attended to loud busking. It decided on one occasion to issue a CPW, however, it has said in other instances there was insufficient evidence to take further action. It says the busking usually occurs in a busy town centre, during the daytime and due to the character of the town is allowed without a permit or other restrictions. There is no fault in how the Council has considered the noise complaints and reached its conclusion not to take further action.
36. With regards to ASB and youths congregating in the market square, the Council does not deem this behaviour as anti-social and there is insufficient evidence for it to take further action. If Ms X believes there are instances of drug taking then she should continue to report this alleged criminal behaviour for the police to attend and investigate. However, as explained earlier, the police when attending have not taken further action either. There is no fault in how the Council has considered the Ms X’s reports of ASB and with its conclusion not to take further action.
37. While the records and evidence show the Council has properly considered Ms X’s reports of ASB and noise, there are issues with its communication with her. There is no evidence the Council has kept Ms X regularly updated. There is also no evidence the Council has provided Ms X with updates following each of the ASB and vulnerability meetings. The Council has told us in response to our enquiries about its investigation and conclusions and the reasons for them, but it has not done the same to Ms X. While I understand it is not practicable to respond to Ms X on a daily basis, there should be periodic updates provided. Due to the nature of the case and Ms X’s continuous reports, it is investigating Ms X’s case on an ongoing basis. However, it has not explained this to Ms X. The lack of adequate communication and updates to Ms X is fault and has caused Ms X frustration and uncertainty.

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Agreed action

38. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Ms X for the distress and uncertainty caused by its failure to regularly update her on its investigations into her reports of noise and ASB.
2. If it decides to keep Ms X’s case open on an ongoing basis an officer/SPOC should write to Ms X at least once a month, to provide her with an overview of its investigation. The overview should explain any action it has or has not taken in response to Ms X’s reports. If the Council decides to close Ms X’s case it should write to Ms X informing her of the decision and the reasons why.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I completed this investigation. There was evidence of fault causing injustice for which the Council have a remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman