Summary: the Council failed to investigate Mr B’s complaint about statutory noise nuisance from a neighbouring property. An apology, payment to Mr B, beginning an investigation if Mr B is still experiencing noise nuisance and training for officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council failed to investigate his complaint about his neighbour creating a statutory noise nuisance and instead wrongly referred him to the registered social landlord (RSL).
2. Mr B says due to the Council’s inaction he has experienced noise nuisance which has affected his ability to work from home and to sleep.

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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. 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

5. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

7. Section 79 of the Environmental Protection Act 1990 (EPA) creates a duty on councils to investigate and, where identified, take action to address 'statutory nuisances'. Under the EPA, a statutory nuisance is one which:
• unreasonably and substantially interferes with the use or enjoyment of a home or other premises; and/or
• injures health or is likely to injure health;
• and which is happening, has happened and is likely to happen again, or is likely to happen in the future.
8. The EPA specifies different things which can constitute a statutory nuisance. Some are general, while some can only be a statutory nuisance if they emanate from a particular source.
9. Things which can be a statutory nuisance if they come from a 'premises' (which can include both domestic and commercial properties) include noise.
10. The Council’s process map for noise enforcement (the Council’s procedure) says when a complaint is received the case will be reviewed. If the complaint is about matters which are unrelated to a statutory nuisance it will be referred to one of the following: environmental health, planning or the relevant external service.
11. The Council’s procedure says if it relates to a statutory nuisance a case will be opened and the complainant will be provided with diary sheets. The Council will notify the perpetrator of the complaint. An officer will review the diary sheets when received and decide how to proceed.

What happened

12. Mr B contacted the Council on 19 June 2023 to report noise nuisance from his neighbour’s property. Mr B told the Council he was experiencing amplified live music. The following day Mr B contacted the Council to raise concerns about excessive noise pollution from the property which was preventing him sleeping at night and working at home during the day.
13. The Council checked its council tax records and identified Mr B’s neighbour occupied a property owned and managed by an RSL. The Council passed the case to the RSL to deal with and told Mr B it had done that.
14. Mr B contacted the Council’s Chief Executive on 22 June, copying in the corporate complaints department. Mr B said he had been trying to report a statutory noise nuisance with no success. Mr B said he had been told to contact an RSL as the Council did not deal with noise nuisance when it originated from a property owned by an RSL. Mr B told the Council the property was managed by a different RSL which appeared unable to stop the noise. Mr B reported unacceptable noise levels from music played at unreasonable hours throughout the day and night. Mr B said that involved someone with a microphone and amplified sound or PA system. Mr B said he considered it constituted a statutory nuisance and the Council had a duty to investigate. The Council told Mr B he needed to complain to the RSL as it was responsible for dealing with the complaint about noise.
15. Mr B contacted the Council again in August to point out local authorities have a duty to act on complaints of antisocial behaviour and cannot simply pass it on to other authorities such as social landlords. Mr B said he would raise the case with the Ombudsman.
16. After receiving a complaint from Mr B in October 2023 the Ombudsman made preliminary enquiries with the Council. I began my investigation in November 2023.
17. When responding to the complaint in January 2024 the Council said it did not consider there was fault in how it had handled the case. However, the Council accepted it could have provided Mr B with more information about why he was directed to the RSL. The Council accepted it should also have told Mr B if the RSL did not respond he could return to the Council and it would contact the RSL to find out what action it had taken and would start an investigation if the situation had not improved. The Council said it would remind its teams of that process in future.
18. The Council said it would contact Mr B to find out the current situation. The Council said if he was still experiencing problems with noise and the RSL had not responded or had taken no action the Council would contact it and begin an investigation immediately.

Analysis

19. The evidence I have seen satisfies me Mr B reported amplified music from his neighbour’s property in June 2023 which the Council referred to the RSL it believed managed the property. The Council says it referred Mr B to the RSL because its experience is the landlord can often resolve matters quicker than the Council can. The Council says if Mr B had continued to report noise nuisance or had told the Council the RSL had not taken any action it would have pursued the case further.
20. I am concerned about the Council’s approach here. Under the EPA the Council has a duty to investigate complaints about statutory nuisances. In addition, the Council’s procedure makes clear if the person complaining has raised a concern about matters which could be considered a statutory nuisance the Council will open a case, provide the person complaining with diary sheets to complete and decide how to proceed once it has received completed diary sheets. The Council did not do that in this case and that is fault.
21. I am particularly concerned about that as Mr B followed up the initial report of noise with further details about the noise. That made clear his neighbour was using amplified equipment and a PA system. Mr B also referred to the noise as a statutory noise nuisance. That should have put the Council on notice the noise Mr B was experiencing could be a statutory noise nuisance and it had a duty to investigate. Failure to do that is fault.
22. I am also concerned the Council’s approach appears to be if the person complained about is an RSL tenant the Council will refer the case to the RSL rather than investigate itself. I appreciate the point the Council makes about the RSL potentially having the ability to resolve the matter earlier. However, for statutory noise nuisance RSL’s do not have the powers the Council has under the EPA or the duty the Council does. The Council’s approach is also not in accordance with its procedure. If the Council routinely declined to investigate complaints about noise or antisocial behaviour from RSL properties I would be concerned the Council was fettering its discretion. In each case I would expect the Council to decide whether the matters complained of could constitute a statutory noise nuisance. If they do I would expect the Council to act in accordance with the EPA, follow its procedure and open a case to investigate. The Council’s failure to do that in Mr B’s case is fault.
23. I am also concerned the Council says it would have made further enquiries with the RSL and potentially opened its own investigation if Mr B had continued to complain or had told the Council the RSL had not taken any action. The Council says it did not do that because Mr B did not contact the enforcement department again. However, the evidence I have seen satisfies me Mr B contacted the Council’s Chief Executive and copied the corporate complaints department in on that email on 22 June. That email provided more detail about the noise levels Mr B was experiencing. In that email Mr B also made clear he considered he was experiencing a statutory nuisance, quoting the EPA.
24. I would have expected that email to have been referred to the relevant department and for action to have been taken on it. In addition, Mr B contacted the Council again in August 2023 to make clear his opinion the Council had a duty to act on complaints of antisocial behaviour and should not have referred him to the RSL. All those contacts should have put the Council on notice Mr B was still experiencing noise issues and that he was claiming a statutory noise nuisance existed. By again referring Mr B back to the RSL the Council failed to recognise its duties under the EPA and failed to follow its own procedure. That, again, is fault.
25. I am satisfied the Council’s failure to act means no action has been taken on the noise issues Mr B is experiencing. Mr B has also had to go to time and trouble to pursue his complaint and is left feeling frustrated that the Council has continually failed act when he knows it has a duty to.
26. I note the Council, in its response to my enquiry, said it would contact Mr B to find out what the current situation was and then open an investigation. However, the Council has known about the complaint to the Ombudsman since October 2023. Yet it had not made an approach to Mr B by the time it responded to my enquiries in January 2024. I am therefore not confident the Council has begun that investigation. I recommended as part of the remedy for this complaint the Council apologise to Mr B, pay him £300 and contact him to find out whether he is still experiencing problems with his neighbour. If he is I recommended the Council open an investigation and follow its procedure to investigate whether the noise is a statutory nuisance and whether it should take action. The Council has agreed to my recommendations.
27. I also recommended the Council carry out a training session for officers dealing with noise complaints. That should make clear the Council’s duties under the EPA and the requirements of the Council’s procedure. That training should make clear where a concern is reported that could be a statutory nuisance the Council has a duty to investigate even if the nuisance is coming from a RSL property. The training should make clear the Council should not fetter its discretion by refusing to investigate any complaint which concerns noise or antisocial behaviour from an RSL property. The Council has agreed to my recommendation.

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Agreed action

28. Within one month of my decision the Council should:
• apologise to Mr B for the frustration he experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mr B £300; and
• discuss with Mr B whether he is still experiencing noise. If he is the Council should begin an investigation and follow its procedure for investigating noise complaints.
29. Within two months of my decision the Council should carry out a training session for officers dealing with noise complaints. That training session should make clear the Council has a duty under the EPA to investigate complaints about statutory nuisances and that officers should not refer all complaints which relate to RSL properties to the RSL to investigate without considering whether the Council should carry out its own investigation.

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Final decision

30. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman