Summary: The Council’s poor record keeping and lack of clear decision making has caused Ms X uncertainty about whether her noise complaints were properly investigated. The Council also failed to have regard to its duties under the Equality Act when it did not consider Ms X’s request for reasonable adjustments. In recognition of the injustice caused by these faults, the Council has agreed to apologise, pay Ms X £350, consider her reasonable adjustments and carry out service improvements.

The complaint

1. Ms X complains the Council failed to properly investigate and deal with noise nuisance from her neighbour.
2. Ms X also complains the Council failed to make sufficient efforts to rehouse her and failed to make reasonable adjustments for her as it should have under the Equality Act 2010.
3. Ms X said the Council’s faults have caused her distress and caused her mental health condition to deteriorate.

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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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended).
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. 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

8. Since Ms X complained to the Ombudsman, she told us that an incident had taken place which significantly changed her housing needs and personal circumstances.
9. The Council has not yet had the opportunity to investigate and respond regarding these new matters and they are not related to the complaint I am investigating here.
10. Ms X asked us to investigate these later events. However for the reasons set out in paragraph 6, I have not investigated this newer complaint. I have informed Ms X she can raise these new issues with the Council and approach the Ombudsman again once her complaint has exhausted the Council’s complaints process.

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How I considered this complaint

11. I considered the information provided by Ms X and the Council.
12. I considered the relevant law and guidance as set out below.
13. I considered our Guidance on Remedies.
14. I considered comments made by Ms X and the Council on a previous draft decision. I will consider their comments on this revised draft decision before making a final decision.

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What I found

Law and guidance

Anti-social behaviour (ASB)

15. The Anti-social Behaviour, Crime and Policing Act 2014 defines anti-social behaviour 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.
16. Some examples of anti-social behaviour include:
• noisy, rowdy or inconsiderate neighbours; and
• street-level drug dealing or drug use.
17. Councils and other agencies such as the Police have some responsibility for investigating and preventing anti-social behaviour. In some cases, councils may work with other agencies such as the Police, where an immediate response is required. Joint-working and information sharing between the agencies is an effective response to anti-social behaviour.
18. There is no formal process chart for an anti-social behaviour investigation. Councils should handle each case according to its merits and considering the severity of the alleged behaviour, whether it is frequent or ongoing and the potential harm to the victims. However, we expect a good investigation considers:
• if it is genuinely anti-social behaviour;
• the risk it represents to the complainant and if there is significant threat or harm. In some cases, we would expect to see the council has completed a formal risk assessment;
• the alleged perpetrator and if they have other records of anti-social behaviour involving them; and
• information from other agencies involved such as what reports they have received and any action they have taken in response.

Noise nuisance

19. Councils must look into complaints about noise that could be a statutory nuisance (covered by the Environmental Protection Act 1990). The noise complained about might be loud music, barking dogs, noisy neighbours, rowdy pubs or noise from industrial, trade or business premises.
20. For a noise to count as a 'statutory nuisance' it must do one of the following:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premise; or
• injure health or be likely to injure health.
21. Generally, the noise will need to be witnessed by the Environmental Health Officer and they will come to an independent judgement on whether it is a statutory nuisance.
22. The process of determining what level of noise constitutes a nuisance can be quite subjective. The level of noise, its length, timing and location may be taken into consideration in deciding whether a nuisance has actually occurred.
23. If an officer decides a statutory nuisance is happening, or will happen in the future, councils must serve an abatement notice. This requires whoever is responsible to stop or restrict the noise. If someone does not comply with an abatement notice they can be prosecuted and fined.
24. Councils can take informal action if the noise complained about is causing a nuisance but is not a statutory nuisance. It may write to the person causing the nuisance or suggest mediation. Councils can also take such steps while investigating a potential statutory noise nuisance.

“Out of Order: Learning Lessons From Complaints About Anti-Social Behaviour”, LGSCO report, August 2023

25. The Ombudsman’s recent report into anti-social behaviour sets out the range of powers councils have to tackle anti-social behaviour and noise complaints.
26. It stresses the importance of councils recording how it arrives at its decisions, demonstrating it has considered a range of evidence and making clear decisions on whether ASB or noise nuisance has occurred, which are then communicated properly to complainants.

Equality act

27. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It provides the UK with discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society.
28. The Act says, a public authority must, in the exercise of its functions, have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it.
29. The Ombudsman’s remit does not extend to making decisions on whether a body in jurisdiction has breached the Equality Act – this can only be done by the courts. But the Ombudsman can make decisions about whether a body in jurisdiction has had due regard to the Equality Act in their treatment of someone, as part of our consideration of a complaint.

Reasonable adjustments

30. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. The Act lists the relevant protected characteristics which include disability.
31. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
32. When the duty arises, service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments requested are reasonable, they must make them.

What happened

33. Ms X lived in social housing during this complaint period. Ms X has a mental health condition.
34. Ms X reported to the Council that her neighbour was using drugs, making loud noises, playing loud music and vandalising the outside of the property. Ms X told the Council this was distressing and affecting her mental health.
35. An officer within the Council’s housing team visited Ms X’s property several days later. The Council said it could not find any evidence of excessive noise during its visit. However it has no notes or records from this visit. There are no records to show whether it also investigated the vandalism or use of drugs during this visit. An environmental health officer was not present. There is no record of any decision making by the Council following this visit.
36. Despite the Council not agreeing with Ms X that the noise was excessive, due to Ms X’s distress at staying in the accommodation, it advised her on ways she could seek alternative housing independently of the Council, including through the Council’s mutual exchange scheme.
37. The Council advised Ms X to report suspected illegal activity such as drug taking and vandalism to the police, which Ms X did. The police did not take any action against the neighbour. However it agreed following the Council’s request to increase its patrols and the police offered to meet with Ms X which she declined. The police took no action against the neighbour.
38. The Council provided Ms X with diary sheets to record in writing when the noise was happening and asked her to send these to the Council. Ms X did this. Ms X also agreed to mediation initially between her and the neighbour. However she later declined.
39. Ms X reported the ASB mainly through frequent emails to the Council over approximately seven months. These emails show Ms X becoming increasingly distressed and refer to her mental health becoming worse.
40. Several weeks after Ms X first made reports, she contacted the Council again about the noise. The Council responded to say it would put Ms X on a waiting list to have a sound recorder installed in the property. It said it had marked her on the waiting list as urgent but she would have to wait some time for a machine to become available.
41. Two months after Ms X first made reports, an advice worker at a local charity made a complaint to the Council on Ms X’s behalf.
42. They said Ms X was vulnerable, had mental health issues and her neighbour’s noise was causing her distress. They also said Ms X would need reasonable adjustments to be made. They did not specify which adjustments.
43. The Council responded to the charity to say:
• Ms X’s claims of noise nuisance had been found to be unsubstantiated.
• She had been asked to fill in diary forms but Ms X had not completed these consistently.
• The Council visited the property in December and her building’s soundproofing was in line with regulations and it did not find evidence of excessive noise.
• The Council told her of her options to move by using the ‘mutual exchange’ scheme. It also arranged an appointment for Ms X with a tenancy sustainment officer on 21 February to assist her in making online housing applications as she was unable to do this independently.
• The Council had been liaising with the mental health professional who had been supporting Ms X.
• When a sound recorder became available it would install one at her property.
44. Ms X was unhappy with this response and asked the Council to escalate her complaint to stage two. She said she had stopped completing the diary forms because she was struggling to complete these due to her mental health condition.
45. The Council decided that as Ms X could send emails regarding the ASB, she did not require any reasonable adjustments to be made in relation to the diary sheets. The Council did not ask Ms X to explain any difficulties she was having with the diary sheets or enquire what reasonable adjustments she needed.
46. Ms X’s advice worker sent another email to the Council. They said the Council’s stage one response had not dealt with her complaint properly. They said Ms X could not manage keeping regular diary entries due to her mental health condition and asked what reasonable adjustments the Council had made to its ASB reporting process so Ms X could properly participate.
47. Around four months after Ms X first made reports, Ms X sent the Council an audio recording which she said was from her home where loud background music was audible. The Council did not consider this evidence or respond to say whether the noise from the recording would be considered a noise nuisance.
48. Several weeks later the Council installed recording equipment in Ms X’s home. This was due to be in the home for two weeks. However shortly after the equipment was installed, Ms X broke the recorder during an episode of deteriorating mental health. The Council did not replace the equipment. The sound recording equipment was too damaged to provide any evidence that the Council could review.
49. On 3 April 2023 the Council responded at stage two of the complaints process. It said during 11pm and 7am, laws state that acceptable noise levels are 34 dBA (decibels adjusted) where background noise is no higher than 24dBA. Without evidence that noise of this level has occurred, it could not carry out enforcement. It said there was not enough evidence of noise nuisance or ASB. However it said it would continue to consider any evidence she provided.
50. Ms X was unhappy with the Council’s response and complained to the Ombudsman in June 2023. Since then her housing needs have changed significantly due to matters unrelated to this complaint.

My findings

Investigation of noise nuisance

51. As set out in paragraph 22, the process of determining noise nuisance is subjective and should take into account a variety of factors. In this case, the Council decided that Ms X’s reports of noise nuisance were unsubstantiated following its officer’s initial visit to her property.
52. However it could not provide any records from the officer’s visit showing how it assessed the noise or what factors it considered when it came to its decision. It also did not communicate its decision to Ms X after its visit. This was poor record keeping and communication. The Council was at fault.
53. These faults have caused Ms X significant uncertainty about whether her noise complaints were properly investigated by the Council.

Audio recordings

54. The Council then attempted to seek further evidence of the reported noise by installing sound recording equipment at Ms X’s home. However Ms X damaged this equipment so no recordings were available from this time.
55. It is understandable that the Council did not replace the equipment after this, as recording devices are expensive and if Ms X damaged any additional devices this would impact other residents waiting to use the equipment.
56. Ms X continued to report noise issues over a period of seven months but the Council chose not to visit the property again. It did not properly record its original decision that the noise complaints were unsubstantiated or explain why it had decided not to visit the property again following the newer reports.
57. Again the Council failed to record why it decided no further action was required following these newer reports of noise nuisance. This poor record keeping was fault. This fault has caused Ms X further uncertainty about whether her noise complaints were investigated properly.

Reasonable adjustments

58. The Council asked Ms X to complete diary sheets to show when the noise was occurring. It continually asked her to do this, including after her support worker told the Council she could not complete the diary sheets due to her mental health condition and requested reasonable adjustments.
59. The Council said it decided without seeking more information from Ms X that she did not require any reasonable adjustments to be made to the noise reporting process.
60. We do not know what reasonable adjustments Ms X sought, whether these would have been reasonable, or whether the adjustments made could have improved her ability to report the ASB. However as explained in paragraphs 27-32, the Council had a duty under the Equality Act to enquire into what adjustments Ms X may need and to decide whether these were reasonable. The Council failed to do this. The Council was at fault.
61. This fault caused Ms X uncertainty about whether she could have been better able to report noise nuisance and ASB to the Council were it not for this fault. This also caused her distress.

ASB

62. In relation to the ASB, including Ms X’s reports that her neighbour was using drugs in the building and vandalising the property, the Council failed to record during its initial visit how it had considered the reports of ASB, despite coming to a finding that there was no evidence of ASB. This poor record keeping by the Council was fault.
63. However the Council did signpost Ms X to the police to report any illegal activities and it asked the police to increase patrols to the area, which the police did. The police did not find sufficient evidence to take further action against the neighbour.
64. On balance, as police did not find evidence to charge the neighbour with any criminal offence, it is unlikely that further investigation into the ASB by the Council would have led to a different outcome.
65. Therefore while the Council was at fault for not properly recording how it investigated the ASB, this fault did not cause an injustice to Ms X as the police also considered these reports and decided not to take any action.

Efforts to rehouse

66. The Council’s poor record keeping and poor communication about its decision making in relation to the noise complaints have caused uncertainty to Ms X about whether her noise complaints were properly investigated.
67. Due to the lack of evidence, I cannot say even on the balance of probabilities how severe any noise nuisance was that Ms X reported. Because of this, it is not possible to come to a finding on whether the impact of any significant noise issues would have caused Ms X to require more support with being rehoused than she received.
68. This is another uncertainty caused to Ms X by the Council’s poor record keeping in this case.

Remedies

69. Ms X’s housing circumstances have changed significantly since she complained to the Ombudsman in June, due to issues unrelated to this complaint.
70. Therefore despite finding fault with the Council’s investigation into Ms X’s noise complaints, I have not been able to remedy this by asking the Council to carry out a new investigation into the noise at her property.

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Agreed action

71. Within one month of the date of the final decision, the Council has agreed to:
1. Apologise to Ms X for the injustice caused by the faults in this case;
2. Pay Ms X £350 to recognize the uncertainty she was caused by the Council’s poor record keeping and communication of its decisions, as well as the distress she was caused by its failure to consider her request for reasonable adjustments; and
3. Demonstrate that it has discussed with Ms X any reasonable adjustments she currently needs and if these are reasonable, provide evidence that it has put them in place. It should put its decision making regarding reasonable adjustments in writing to Ms X and explain the reasons for its decision.
72. Within three months of the date of the final decision, the Council has agreed to demonstrate that it has reminded its staff that deal with noise complaints and ASB that:
1. they should consider a range of evidence when assessing ASB and noise nuisance in order to come to a reliable decision and keep clear records of how they arrive at these decisions;
2. they should keep records of all visits and what was witnessed during the visits;
3. they should send clear, detailed decisions to complainants explaining how the Council has decided whether ASB or noise nuisance has taken place and what evidence it relied on; and
4. if a resident says they are not managing to access a service, report issues, or communicate with the Council due to a health condition or disability, the Council has a duty under the Equality Act to enquire into the adjustments they are requesting and if they are reasonable, to put them place.
73. The Council should provide us with evidence it has complied with the above actions.

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Final decision

74. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to apologise, pay a financial remedy and carry out service improvements.

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Investigator's decision on behalf of the Ombudsman