Summary: Mr X complained the Council lost evidence, delayed and didn’t adequately investigate his reports of noise nuisance from a barking dog. The Council has not retained all the documents relating to this case causing frustration and uncertainty. However, the Council has now investigated the complaints and found no evidence of a statutory nuisance.

The complaint

1. Mr X complains the Council, when dealing with his reports of noise nuisance from a neighbour’s dog, lost evidence, didn’t investigate adequately and delayed responding to him.

Mr X says his mental health has deteriorated and he cannot enjoy being in his home.

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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 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)
3. 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

4. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

Statutory nuisances

5. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
6. Activities a council might decide are a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street;
• smoke from premises;
• smells and fumes from industry, trade or business premises;
• artificial light from premises;
• insect infestations from industrial, trade or business premises; and
• accumulation of deposits on premises.

7. 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 property; and/or
• injure health or be likely to injure health.

8. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers to gather evidence. Officers may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or make site visits.
9. Once evidence gathering is complete, a council will assess the evidence. It will consider matters such as the timing, duration, and intensity of the alleged nuisance. Officers will use their professional judgement to decide whether a statutory nuisance exists.

Community protection notices

10. Councils and the police can issue community protection notices (CPN) to prevent anti-social behaviour which is unreasonable and having a negative effect on the community's quality of life. A CPN requires the behaviour to stop and, where appropriate, require the recipient to take reasonable steps to stop it happening again. Not complying is an offence and may result in a fine or a fixed penalty notice.
11. Councils must issue a written warning in advance of a CPN. The council should decide how long after the written warning to wait before serving a CPN. A person can appeal a CPN in the magistrates' court within 21 days of receiving it if they disagree with the council’s decision.

Good Administrative Practice

12. The Ombudsman publishes a document called Principles of good administrative practice which we use as a benchmark for the standards we expect when investigating the actions of local authorities. The six principles are:
• Getting it right
• Being service-user focused
• Being open and accountable
• Acting fairly and proportionately
• Putting things right
• Seeking continuous improvement.
13. Being open and accountable includes stating the criteria for decision making and giving reasons for decisions. As well as keeping proper and appropriate records.

Key facts

14. This section sets out the key events in this case and is not intended to be a detailed chronology.
15. Mr X raised complaints about noise from a barking dog at the neighbouring property. Based on what I have seen, Mr X began to complain in June 2022. However, the Council says that it has not retained any case records for the period November 2022 and October 2023. It has not given a reason for the lack of records for this period.
16. In June 2022, Mr X spoke with an officer who gave general advice. The Council closed the case as Mr X felt the noise from the barking may have been a one-off incident. However, Mr X contacted the Council again on 11 July 2022. The Council advised him of the importance of keeping noise diaries. The Council sent letters to both Mr X and his neighbour about the situation and the possible outcomes if the noise continued.
17. Mr X sent the Council a record of noise incidents on 20 July. An officer assessed them and found there were some incidents, short in duration throughout the day up to 9 30 pm. The Council issued Mr X’s neighbour a Community Protection Warning (CPW) on 5 August 2022 with a 14-day compliance period. It also wrote to Mr X saying there was not sufficient evidence to prove a statutory nuisance existed.
18. Noise recording equipment was installed at Mr X’s property at some point around October 2022. The lack of case records mean it is not possible to know exactly when this happened. The Councils says that when the equipment was returned to it, no recordings were made and so it closed the case. However, it must be noted that there is no evidence to support this position.
19. In November and December 2022, several emails were sent between the Council and Mr X. The emails are not available, but they are quoted in the Council’s stage two complaint response dated 14 March 2024. The emails indicate the Council was still actively investigating Mr X’s noise reports and that it was in contact with his neighbour. The Council mentions a notice that expires on 26 December, installing noise monitoring equipment in the new year and the possibility of taking prosecution action if the situation doesn’t improve.
20. The Council again installed noise monitoring equipment at Mr X’s property in March 2023. The Council now says analysis of the recordings show the dog is not barking for long periods of time and not at sensitive times of the day. It acknowledges the barking is annoying and disturbing Mr X but that this does not constitute a statutory nuisance. Mr X says he was never informed of the outcome of analysis of the recordings.
21. Mr X made a formal complaint in October 2023. The Council’s stage one response dated 30 November 2023 upheld his complaint that he had not been informed of the outcome of the investigation, that it had not promptly communicated with him and had not been clear what was happening with the noise complaint. The Council said it had reviewed the case including the analysis of the noise recordings from 30 March to 14 April 2023. It confirmed this had not established a statutory nuisance and that no enforcement action would be taken. The Council again closed the case.
22. Mr X escalated his complaint to stage two of the Council’s procedure, and it provided a response on 14 March 2024. Mr X complained the Council had told him there was a statutory nuisance and that the recordings from March/April 2023 substantiated this. The Council accepted it has no written case records for the period after 9 November 2022 including the results and findings of the analysis of the noise recordings. The Council upheld Mr X’s complaint and apologised for the confusion and lack of information held on his case file.
23. The Council clarified the recordings from March/April existed and were analysed as part of the stage one complaint response. It again confirmed there was insufficient evidence of a statutory nuisance. It also explained the factors considered to determine whether a statutory nuisance exists.
24. In April 2024, Mr X contacted the Council saying the problem was worse with the dog barking constantly for many hours in a row. Mr X spoke with an officer on 7 May and said he was reluctant to have the noise monitoring equipment installed again but agreed to complete diary sheets. After receiving the diary sheets, the Council carried out several monitoring visits.
25. The Council conducted four monitoring visits between 23 May and 24 July 2024. The visits lasted in duration between 30 and 45 minutes. The officer positioned themself in front of the neighbouring property and walked down the alley at the side of the neighbour’s property. The Council says that no barking from the neighbouring property was witnessed during these visits.
26. The Council wrote to Mr X on 13 August closing the case.

Analysis

27. Mr X complains about the way the Council dealt with his reports of nuisance by a neighbour’s barking dog. He complained about delay, lost records and the failure to adequately investigate. When Mr X complained to the Council about this, it upheld his complaint accepting that records have not been retained and that it failed to properly communicate with him and provide the outcome of the noise monitoring analysis. The failure to keep proper records is fault.
28. As a result of the Council’s failures, Mr X was left not knowing if the Council had properly considered the evidence it had about the nuisance. As the records are no longer available, I cannot know exactly what the Council’s intentions were but the extracts from emails quoted in the complaint responses do suggest the Council was intending to take further formal action against the neighbour. I acknowledge this caused frustration and uncertainty.
29. The recordings from April 2023 were retained by the Council and so it was subsequently able to analyse them. Its professional judgement is that while there is evidence of barking, this did not constitute a statutory nuisance. The Ombudsman is not an appeal body. We cannot question whether the decision was right or wrong, regardless of whether you disagree with the decision the organisation made. The fault in this case was the failure to properly communicate the analysis of the recordings to Mr X at the appropriate time.
30. The Council has more recently carried out a further investigation into the issue. Mr X indicated he was not willing to have the recording equipment reinstalled at his property so the Council carried out site visits. Several visits were made to the area over a period of weeks and the qualified officer did not witness a statutory nuisance. I am satisfied the Council has properly investigated this issue and while Mr X continues to be affected by the barking, I cannot conclude any fault by the Council.

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Agreed action

31. To remedy the injustice caused by the fault identified in this case the Council will, within one month of my final decision, take the following action:
• Make Mr X a symbolic payment of £400 to recognise the uncertainty and frustration caused; and
• Issue a written reminder to all staff of the importance of keeping proper records.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman