Decision : Closed after initial enquiries
Decision date : 08 Mar 2018
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Mr B’s complaint about the way the Council dealt with a complaint it received about noise nuisance. It was reasonable to expect Mr B to use his right of appeal if he thought there were grounds to challenge the abatement notice and is unlikely an investigation by the Ombudsman would lead to a different outcome for Mr B.
- The complainant, whom I shall call Mr B, complained about the way the Council dealt with a complaint it received about noise nuisance.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
- 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I have considered the information Mr B provided and the Council’s correspondence with him. I have given Mr B an opportunity to comment on my draft decision.
What I found
- Mr B told us he received a letter from the Council in March 2017 about noise coming from his property. He says the way the Council wrote the letter caused him to become anxious and worsened his medical condition. Mr B feels the Council could have dealt with the matter better. He says the Council did not give him a proper opportunity to explain the situation.
- Mr B told us his main complaint is about the way the Council’s environmental protection officer dealt with him when visiting his property. Mr B says he had to ask the officer to leave because he was so upset by what the officer had said to him. Mr B says the officer showed no empathy for his situation or any consideration of his disabilities.
- Mr B feels that the way the council has handled the situation has been a little bit underhanded and it has dragged things out causing him greater upset.
- Mr B is seeking an apology for the officer who visited him. Mr B says he received an apology from the Council’s Chief Executive and the head of the relevant service but no direct apology from the officer who visited him. He would like to know what action the Council is taking against the officer.
- If councils receive a complaint about a noise which could be a statutory nuisance, they must investigate. If councils find the tests for establishing statutory nuisance at domestic premises are met, they must issue an abatement notice. The Council did not have discretion not to act because of Mr B’s personal circumstances.
- If Mr B felt there were grounds to challenge the abatement notice because the tests for statutory nuisance were not met, it was reasonable for him to use his right of appeal to the Magistrates’ Court. That is because this is the specific method the law provides for challenging an abatement notice. We would not normally investigate a complaint about the way the Council has dealt with the matter when there is a right of appeal against the notice the Council has issued. That is because the way the Council has dealt with the matter is usually not clearly separable from the end result, that is, the abatement notice.
- In any case, it is unlikely an investigation by us would lead to a different outcome for Mr B. When two senior officers have apologised to Mr B, it is very unlikely we would recommend an additional apology from the officer who visited Mr B even if this is what the complainant has requested. Any action a council might take against an employee is a confidential issue between employer and employee.
- The Ombudsman will not investigate this complaint. This is because it was reasonable to expect Mr B to use his right of appeal if he thought there were grounds to challenge the abatement notice and it is unlikely an investigation by the Ombudsman would lead to a different outcome for Mr B.
Investigator's decision on behalf of the Ombudsman