The Ombudsman's final decision:
Summary: The Council investigated Mrs X’s report of neighbour noise nuisance and use of a CCTV camera promptly. It gave her an officer contact to report ongoing problems and offered to witness them. It responded to Mrs X’s request for an update about this and decided it would not take further action. After Mrs X complained to the Ombudsman, the Council said it would further investigate her complaint. It did not do so. It has agreed to apologise to her for this. It has reviewed its complaint handling procedures to prevent reoccurrence of this fault.
- Mrs X complains about how the Council investigated noise nuisance she says has been caused to her by her neighbour. She says she has suffered this for over a year.
- Mrs X says the Council ignored her complaint, refused to record the noise nuisance and has not dealt with the situation properly.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- I spoke to Mrs X about her complaint.
- I asked the Council questions about the complaint.
- I considered the Environmental Protection Act 1980.
- I wrote to Mrs X and the Council with an earlier version of my draft decision and considered further information from the Council, resulting in a revised draft.
- I wrote to Mrs X and the Council with a revised draft decision and gave them the opportunity to comment. I considered what they said before making this final decision.
What I found
- Councils must look into complaints about noise that could be statutory nuisance. This might be noisy neighbours or noise from a business premises. This is covered by the Environmental Protection Act 1980.
- For noise to count as a ‘statutory nuisance’ it must “unreasonably and substantially interfere with the use or enjoyment of a home or other premises or injure health or be likely to injure health”.
- The statutory nuisance must be witnessed by an Environmental Health Officer who will come to an independent judgment. They consider the level of noise, length, timing and location to decide if it is a statutory nuisance.
- Councils can decide to take informal action if a noise complained about is causing a nuisance but is not a statutory nuisance. They can write to the person complained about or suggest mediation. Councils should have a policy or procedure to explain what it will do.
- They should consider visiting a property, asking the person to fill in a diary sheet recording when problems are occurring, give an out of hours emergency number and assess the level and nature of the problem.
- Councils have duties to investigate anti-social behaviour and have powers to take action against people if they find their behaviour is unacceptable.
Council roles and responsibilities
- The Council has a ‘Community Protection Service’ responsible for dealing with complaints about anti-social behaviour. The Council’s Environmental Health service deals with complaints about noise from neighbours. It does not have a specific policy on noise complaints.
- Mrs X contacted the Council in October 2016 about noise nuisance from her neighbour and their use of a CCTV camera she said was pointing into her property. She says she spoke to an officer about heavy machinery being used by her neighbour at all hours. She thought her neighbour was using the property to repair cars as a business.
- A Council Community Protection Service officer visited the property on 26 October and did not witness work on cars. The officer gave Mrs X his contact details and said to contact him when the neighbour made a noise so he could witness the problem. The officer kept visiting the area when on duty during the next month to check if the neighbour was running a business. He did not witness any business activity. The Council says it told Mrs X to keep a diary and record anything on her mobile phone. It decided it was not appropriate to give Mrs X noise recording equipment because of lack of evidence.
- A Council officer spoke to Mrs X in November after she again contacted the Council with concerns. Its records say Mrs X told the officer that noise had died down but she had concerns about the camera. The officer explained that as the camera was not pointing directly at Mrs X’s property it could not take action. The Council closed Mrs X’s case.
- Mrs X asked the Council for an update about the situation in February 2017. The Council’s records show an officer reviewed the case in March. They visited Mrs X, discussed the situation and Mrs X said there was not now as much noise from the neighbour. Mrs X says she was not visited by the Council. The Council explained it could not check the camera. As long as it was not pointing directly at Mrs X then this was permitted. Mrs X then complained to the Ombudsman in May 2017.
- In June 2017 the Council told us Mrs X’s complaint had not been through its corporate complaint process. It said it would pass the complaint on to its corporate complaint team (‘Have your say’) to investigate at stage 1 of its corporate complaints policy. It agreed to contact Mrs X directly. Mrs X heard nothing from the Council and so she contacted the Ombudsman again in August.
- The Council and Ombudsman corresponded about what was happening to the complaint during August and September. Mrs X contacted the Ombudsman again in September to say she had still heard nothing from the Council. The Council again told the Ombudsman it would get in touch with Mrs X about the complaint.
- In October 2017 Mrs X told the Ombudsman she had heard nothing from the Council. The Council told us the complaint had been logged and allocated as a new complaint with the Community Protection team. It had not considered the complaint through its corporate complaint policy as it told us it would in June and September. The Council said it would contact a senior officer in the Community Protection team to ask for an update on progress.
- A week later the Council told us the officer assigned to investigate Mrs X’s case no longer worked for it. The Council has no record of what the officer did with the case from June 2017 onward.
- The Council said it had learnt from the problems handling Mrs X’s complaint and its contact about this with the Ombudsman to improve how it worked in future.
- When Mrs X contacted the Council in October 2016, a Community Protection service officer responded promptly to investigate her situation and consider whether her neighbour was behaving anti-socially.
- The officer did not witness a problem but gave Mrs X his contact details. The officer gave Mrs X advice about what the Council could do about the neighbour’s use of a CCTV camera. These were appropriate actions and the Council was not at fault in them.
- When Mrs X got in touch with the Council again in February 2017 it treated her request for action as a service update request. There is no record of Mrs X’s contact so I cannot say if this was appropriate in the circumstances. The Council passed Mrs X’s request to the Community Protection team. An officer from the team visited Mrs X in March and explained the limits of what the Council would do. Mrs X does not recall this visit. I am satisfied, from the Council’s records it was an appropriate action and there was no fault in it.
- After Mrs X contacted the Ombudsman in May 2017 the Council twice told us it would investigate her complaint through the Council’s complaint procedure ‘Have Your Say’. The Council did not do so. This was fault causing Mrs X uncertainty about what was going on. Mrs X had to repeatedly contact the Ombudsman to get updates on the situation. It did not cause further injustice because I am satisfied the Council, through its visit in March, had already considered Mrs X’s situation and explained its powers.
- The Council should apologise to Mrs X for not investigating the complaint she made to the Ombudsman.
- The Council has reviewed its complaint handling procedure to ensure service complaints about the community protection service are properly dealt with. It has also reviewed how the Council deals with correspondence with the Ombudsman to ensure it takes agreed actions. These are appropriate actions to prevent reoccurrence of the fault identified.
- The Council has agreed to apologise to Mrs X for not investigating her complaint through its complaint procedure as it told the Ombudsman it would.
- I have completed my investigation. I have found fault causing injustice. The Council has carried out action to prevent reoccurrence of the fault.
Investigator's decision on behalf of the Ombudsman