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London Borough of Brent (20 001 601)

Category : Environment and regulation > COVID-19

Decision : Upheld

Decision date : 11 Oct 2021

The Ombudsman's final decision:

Summary: Mrs X complained about the way the Council responded to reports about noise nuisance and anti-social behaviour from a neighbour’s building site during the first COVID-19 national lockdown. The Ombudsman found there was fault causing injustice resulting from Council delays and periods of inaction. We have not seen evidence that had this fault not occurred the outcome would likely have been different, but the Council agreed to provide an improved remedy.

The complaint

  1. Mrs X complained about the way the Council responded to reports about noise nuisance, anti-social behaviour, planning and safety issues from a neighbour’s building site during the first COVID-19 national lockdown.
  2. Mrs X is unhappy about delays and a lack of action from the Council.

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What I have investigated

  1. This decision statement considers Mrs X’s complaints about noise and anti-social behaviour only.
  2. Her complaints about planning and safety issues have been considered separately.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. 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),
  3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
  4. If we are satisfied with a council’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

  1. As part of the investigation, I have considered the following:
    • The complaint and the documents provided by the complainant.
    • Documents provided by the Council and its comments in response to my enquiries.
    • Environmental Protection Act 1990.
    • Control of Pollution Act 1974.
    • The Council’s Nuisance Procedure.
    • The Council’s Anti-Social Behaviour Policy.
  2. Mrs X and the Council 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

Noise nuisance

  1. Councils must look into complaints about noise that could be a statutory nuisance. For a noise to be classed as a statutory nuisance it must either:
    • Unreasonably and substantially interfere with the use or enjoyment of a home or other premises, or
    • Injure health or be likely to injure health.
  2. 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.
  3. If an officer decides a statutory nuisance is happening, councils must serve an abatement notice under the Environmental Protection Act 1990 (EPA). This requires the responsible party to stop or restrict the noise.
  4. Where noise comes from a construction site, councils may serve a notice under the Control of Pollution Act 1974 (CoPA) stating how the work should be carried out to avoid a nuisance. The notice can specify the level of noise permitted, the machinery that can be used, the hours when work can be done, and steps that need taking to minimise noise.
  5. If someone does not comply with notice under the EPA or CoPA they can be prosecuted and fined.
  6. It is up to individual councils to decide what level of service they provide to deal with noise complaints.
  7. A complainant can gather evidence of noise nuisance using the Council’s mobile noise application, or by completing diary sheets. An officer may make an appointment to witness the nuisance and the Council will also consider remote monitoring equipment.
  8. The Council will respond to new a nuisance report within three working days. Officers will interview the complainant in person or over the phone for details of the type, frequency, history, and source of the nuisance.
  9. Cases will be reviewed by a senior officer when: new evidence is received, three months has elapsed since the last complaint, or no further action can be taken. Where no new complaints have been made within three months the case will be closed.
  10. Complainants will be kept informed at initial contact and after an officer has assessed the noise.

The Council’s Anti-social behaviour policy

  1. The Council can investigate any form of anti-social behaviour (ASB), including intimidation, harassment, nuisance, and neighbour disputes.
  2. Reports of violence or hate-related incidents will be processed urgently, and the Council will respond within one working day. The Council will aim to respond in five working days for all other reports.
  3. ASB involving a crime should be reported to the Police.
  4. If it investigates ASB, the Council can take action, including issuing community protection warnings and notices, and acceptable behaviour agreements. The Council can also work with the Police to prosecute.
  5. The Council cannot take action for everyday disagreements or household noise and will not investigate actions not sufficiently serious or unlikely to cause harm.

Site visits

  1. Because of government social distancing rules in response to COVID-19, the Council decided not to carry out routine site visits when considering nuisance and ASB complaints.

What happened

  1. I have summarised below some of the key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
  2. Mrs X contacted the Council on 15 April 2020 to report her neighbour was building a loft conversion using external builders who had been working all day. She said the work will cause a lot of noise and is not an urgent project. She was concerned about the risk of spreading COVID-19. She asked what the guidelines were.
  3. On 21 April, Mrs X reported her neighbour started construction at 7.45am. She said normal construction hours should not apply while people were forced to stay at home due to COVID-19.
  4. Mrs X telephoned the Council on 23 April to complain about her neighbour’s building work. She said the noise was unbearable, and workers weren’t following social distancing guidelines. She also said they were rude, offensive, and racist towards her.
  5. The Council told Mrs X there are no COVID-19 measures that restrict noisy construction during normal daytime hours. It referred to the Control of Pollution Act 1974, which permits noisy construction from 8am to 6pm Monday to Friday and 8am to 1pm on Saturdays. It said Mrs X could get back in touch if the noise significantly deviated from those hours.
  6. Mrs X’s father emailed the Council the same day. He summarised the problems by saying their neighbour had:
    • Erected scaffolding which reduced their access.
    • Piled up rubbish on the garden shed.
    • Unlawfully extended the roof of an outbuilding used for storing rubbish.
    • Removed their fence without permission.
    • Carried out noisy and dirty work on the shared driveway.
    • Worked at unsociable hours.
    • Used foul language and racist remarks.
  7. The Council emailed Mrs X on 24 April in reply to her earlier emails. It copied in the planning enforcement and nuisance control teams so they could offer further advice. It said Mrs X should contact the Police if she is being harassed.
  8. Mrs X made a formal complaint to the Council on 5 May. She complained her neighbours had been carrying out construction, working out of hours, for over a month. She said she was trapped at home due to the COVID-19 lockdown and could not escape the noise. She said she reported this to the Council dozens of times but received no help or advice and the Council had not investigated. She said it was affecting her mental health.
  9. Mrs X emailed her local councillor on 13 May. She said the noise was continuous throughout the day and out of hours. She also complained about loud music being played. She said she had taken recordings using the Council’s noise recording application and submitted them to the Council but not heard back. She said the owner had been abusive and racist when she approached them. The Councillor forwarded Mrs X’s email to the Council.
  10. On 15 May, the Council confirmed its earlier advice to Mrs X. It also noted she had taken recordings of some out of hours noise and said it would contact the person responsible to give them advice about permitted times and loud music.
  11. A council officer spoke to the tenant of Mrs X’s neighbour’s house. They then sent an email with advice about noise. The email highlighted four dates where noise was recorded outside the permitted hours. The officer said the Council would monitor the case and contact the neighbour again if there were further concerns about noise outside the regulated hours.
  12. After Mrs X sent further noise recording to the Council, an officer spoke to her on 27 May. They explained the conversation with her neighbour. The officer then emailed Mrs X after reviewing her recordings. There were two instances where noise occurred outside the permitted hours, but the officer said they did not convincingly convey construction noise. They said the Council would consider enforcement if noisy building works, outside permitted hours is evidenced.
  13. Mrs X emailed the officer the following day to say her neighbour was carrying out noisy construction work all weekend, including the bank holiday. She said she could not record them out of her window as they shout at her. If they saw her recording they stopped briefly so there was no noise to record. She said her neighbour had ignored the Council’s warnings.
  14. The officer told Mrs X he spoke to the owner and his son undertaking the works. They said they complied with the permitted hours and had been fixing a lock when out of hours noise was recorded. The officer considered that was DIY and not construction noise. The officer said the neighbour told him there were long-standing poor relations with Mrs X and the Council will not take sides in neighbour disputes. The officer said the neighbour understood the Council may take action but stressed the evidence must be robust enough to defend any appeal. He said Mrs X could continue to use the noise recording application, and also advised she could take private legal action for statutory nuisance.
  15. Mrs X denied there had been long-standing poor relations with the neighbours. She said the Council was choosing to take the neighbours word over hers because it made their job easier. She said the Council ignored the fact her neighbour took down her fence without permission and threw away some of her belongings in a skip. She said the Council also ignored the verbal and racist abuse she reported.
  16. Mrs X reported further noise and verbal abuse to the Council on 2 and 4 June. She said the neighbour was using the property to store building materials and had employees coming and going.
  17. The Council told Mrs X it had allocated the case to an officer on 5 June. However, it said it was not carrying out site visits due to COVID-19. It said this meant enforcement investigations were likely to be delayed.
  18. An officer from the Council’s nuisance team told Mrs X on 7 June that the other matters she reported (theft, destruction of property, verbal abuse and racism) were matters for the Police and the Council’s community safety team. The officer referred Mrs X’s comments to them. The officer confirmed, generally, people can operate a business from their home, but this should not result in nuisance to neighbours. He notified the planning enforcement team of Mrs X’s concerns.
  19. The Council’s community safety team referred the matter to the Police on 10 June (due to harassment and intimidation) and asked them to visit Mrs X and her neighbour.
  20. An officer from the community safety team spoke to Mrs X and suggested she log future incidents using the Police’s non-emergency number. The officer said they would see if they could write to Mrs X’s neighbour as well.
  21. An officer reviewed Mrs X’s noise recording on 26 June. They considered audible noise was present outside permitted hours on six separate days, and a total of 11 individual incidents. The Council served a CoPA notice on Mrs X’s neighbour.
  22. Mrs X said the Council had already issued two warnings and asked what further steps would be taken. The Council clarified the first two warnings were informal, which is how it tries to resolve most cases. The CoPA notice is a formal notice restricting the times the neighbour can work. If there is no improvement, the Council will need to visit and witness a breach to enable the matter to go to court for prosecution.
  23. Mrs X brought her complaint to the Ombudsman on 14 July 2020. Because Mrs X had not completed the Council’s complaints procedure, we contacted the Council. The Council said it would send its response to Mrs X’s complaint by 10 September. It said there was a delay because its community protection service was prioritising COVID-19 related issues.
  24. The Council responded to Mrs X’s formal complaint on 7 October 2020. It said:
    • Mrs X’s case was still an open nuisance complaint and the case officer spoke to her in June, visited the site, and served a CoPA notice which restricted noise outside prescribed times.
    • A breach of the notice by her neighbour could result in a fine of up to £5,000.
    • Mrs X sent further noise recordings in July and September. The case officer will be in touch to arrange a site visit.
    • It will also carry out further site visits in the coming weeks.
    • There has been an increase in demand for its services during the pandemic and this has affected resolution times.
  25. Mrs X wrote to the Council on 9 October. She raised concerns about its handling of her complaints and the delay sending a formal response. She asked for a meeting with the Council.
  26. A member of the Council’s community safety and nuisance teams met Mrs X on 15 October. Officers agreed to unannounced visits to try to evidence the nuisance. They also offered mediation with Mrs X neighbour, which she refused. She wanted the Council to resolve matters first. The Council said it would look at any ongoing investigations into harassment.
  27. On 3 November, the Council asked for an update from the Police. The Police officer dealing with the complaint said they could not corroborate Mrs X’s and the Police took no further action.
  28. The Council confirmed this to Mrs X. Mrs X said, according to the government, the Police and council can issue fines for gatherings of different households. She said the Council failed to investigate her reports about breaches of social distancing rules.
  29. The Council told Mrs X it had no power to fine people for gatherings, only the Police could.
  30. The Council sent its final response to Mrs X’s complaint about nuisance and ASB on 1 December 2020. It said:
    • There were no restrictions preventing building work during the pandemic, so the Council could not take action.
    • It contacted her neighbour about out of hours noise and told Mrs X she could contact the Police about breaches of social distancing rules.
    • Following its stage one complaint response, the Council carried out unannounced site visits on 19, 20, 22 and 23 October. The officer did not witness any noise or nuisance and the Council has not received any reports from Mrs X since the last visit.
    • There was an initial delay between Mrs X’s nuisance report and a review by an officer, but it had prewarned her about delays.
    • After reviewing the recordings, the Council took action, and issued a CoPA notice.
    • It accepted recordings were not listened to, and Mrs X was not updated, in July 2020.
    • Its most recent investigations found no evidence of noise nuisance. It must gather evidence before action is taken.
    • While there were delays, the Council acted within its powers.
    • There were delays acting on Mrs X’s reports of ASB in April and May. It did not refer them to the Police until June.
    • Apart from an initial issue with the nuisance team not notifying the community support team, the Council said there was good communication between the teams.
    • It did not consider the community safety team was at fault for the way it considered Mrs X’s reports, as it told her what action it took and referred her concerns to the Police. The Police decided there was no action it could take. The Council offered mediation, but Mrs X declined.
    • It confirmed it had no powers to issue fines for breaching social distancing rules and correctly referred Mrs X to the Police.
    • It apologised for the substantial delay providing a stage one complaint response, which it blamed on COVID-19 related pressures.
  31. To remedy Mrs X’s complaint, the Council offered her £350 for the inconvenience and uncertainty the delays and lack of updates caused. It also said it will take the following actions:
    • The nuisance team will review whether measures can be taken to tell residents of potential delays as soon as possible.
    • The nuisance team will remind officers of the importance of promptly referring ASB complaints to the community safety team.
    • It will remind officers to adhere to promises made to customers and take prompt action on recordings submitted when they have been highlighted to them.
    • The community safety team will ensure suitable action is promptly taken on any report and ensure residents are updated.
  32. Mrs X brought her complaint back to the Ombudsman on 16 December. After months of waiting, she was not satisfied with the remedy the Council offered.

Response to my enquiries

  1. The Council told me its policy was to only consider site visits as a last resort. Staff were risk assessed, with some officers considered to be higher risk. Two of the three nuisance control officers were working from home or conducting street level assessments.
  2. It was difficult for the Council to carry out an assessment from outside Mrs X’s home, as it did not have the available officers.

Analysis

Noise

  1. The COVID-19 national lockdown was a difficult period, and it was unfortunate for Mrs X that her neighbour started building work during that time. Several issues arose as a result of the building work.
  2. The first issue was noise, and I can appreciate Mrs X’s frustration. However, the Council had no power to stop general construction noise during permitted hours of the day. When Mrs X’s neighbour made noise outside permitted hours, the evidence seen shows the Council took suitable action. It issued warnings and then a formal notice.
  3. From the general pattern of correspondence I have seen, the Council did respond to Mrs X’s complaints and spoke to her about what action officers took. It did not do so as quickly as Mrs X would have liked, and I appreciate this was a frustrating time for her, but I must take account of the demand the Council experienced during the COVID-19 pandemic and the pressures officers were working under.
  4. There were delays reviewing the noise recordings Mrs X submitted. The evidence seen shows Mrs X sent noise recordings throughout April, May, and June. Officers reviewed them on 15 and 27 May and on 26 June. Again, this was not as quick as Mrs X wanted but the delays were not significant, and the Council took suitable action by warning the neighbour and then issuing a formal notice.
  5. The Council apologised to Mrs X for not reviewing the recordings she sent in July. By that time, government lockdown restrictions were easing, and the Council started doing site visits again. It did not carry out unannounced monitoring until October, when officers did not witness any noise. There is not enough evidence for me to say the Council could have prosecuted Mrs X’s neighbour, or brought a stop to the noise, if it had reviewed the recordings sooner, but the delay will have caused added frustration for Mrs X, who already felt the Council was not doing enough.

Anti-Social Behaviour

  1. Mrs X alleged her neighbour’s behaviour was abusive and racist in April 2020. The Council told Mrs X to report harassment to the Police, but it did not pass her allegations to its ASB team or the neighbourhood policing team until 7 June. That was too long.
  2. The Council considered the Police were better placed to investigate and I do not find the Council at fault for that. The Police spoke to Mrs X’s neighbour but could not corroborate her complaint and decided it could take no further action.
  3. I therefore consider the Council’s delays did not affect the outcome but will again have caused Mrs X frustration. She had to repeat her allegations before the Council acted and felt like the Council was not listening.
  4. Mrs X also complained about the way her neighbours treated her belongings, including removing her fence. The Council could have investigated this as a neighbour dispute under its ASB policy. However, it was not doing site visits at that time and did pass details on to the Police. Therefore the Council’s decision not to investigate this under its ASB policy was not fault.
  5. Mrs X also accused her neighbour and their builders of breaking social distancing rules. The Council has no power to deal with this and rightly referred Mrs X to the Police.

Summary

  1. Under normal circumstances, the Council could have done site visits in relation to the noise relatively quickly. That may have brought about a quicker improvement for Mrs X.
  2. The main delays were a result of the COVID-19 pandemic rather than through inaction by the Council. While there were some general delays in responding to Mrs X I do not consider they were significant.
  3. There were more significant delays in referring with Mrs X’s allegations to the Police and reviewing her noise recordings in July 2020. The Council acknowledged this. I have not seen evidence the Council could have resolved the issues, or prosecuted Mrs X’s neighbour, if it had reviewed the recordings sooner.
  4. I do not consider the Council has adequately explained the reason for its delay providing a stage one response to Mrs X’s complaint. It was under pressure, but it was a significant delay. The Council continued to reply to Mrs X’s general correspondence, and it continued to investigate, so it should have responded sooner. That was fault and caused Mrs X further avoidable frustration.

Injustice and remedy

  1. The Council recognised and acknowledged where its service fell short. The measures it took to review best practice and inform staff are suitable and welcome.
  2. The Council also recognised the inconvenience and uncertainty resulting from its delays and lack of action. However, Mrs X is not satisfied with the Council’s offer of £350.
  3. The Ombudsman’s guidance recommends payments of between £100 and £300 for distress. That includes things like inconvenience and uncertainty. More can be justified in circumstances where the distress was severe or prolonged. The Council’s offer is therefore in keeping with our guidance.
  4. However, I consider Mrs X has also suffered a significant degree of undue and avoidable frustration resulting from the Council’s fault. While I cannot say her complaints would have been resolved sooner if the Council acted without fault, she did suffer an injustice, nevertheless. That injustice lasted several months, particularly with the Council’s delayed complaint response. The Council should therefore increase its proposed remedy payment.

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Agreed action

  1. Within four weeks of my final decision, the Council agreed to:
    • Apologise to Mrs X for the inconvenience, uncertainty, and frustration its faults caused. And
    • Pay her £500 in recognition of the injustice.

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Final decision

  1. I have completed my investigation. There was fault causing injustice resulting from Council delays and periods of inaction. I have not seen evidence the outcome would be different, but the Council agreed to provide an improved remedy.

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Investigator's decision on behalf of the Ombudsman

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