The Ombudsman's final decision:
Summary: Miss X complains that, having first complained to the Council about noise nuisance caused by her neighbours in May 2017, there has been no resolution to the problem. We found there was fault by the Council in how it allocated Miss X’s case, the time taken to investigate her concerns and how it updated her once it applied different legislation. These all caused an injustice to Miss X in the form of uncertainty and time and trouble. The way the Council applied the Housing Act was also fault but this did not cause an injustice to Miss X. The Ombudsman recommended the Council should remedy the injustice caused to Miss X by apologising and reviewing how it updates complainants during investigations. It has agreed to do so.
- Miss X complains that, having first complained to the Council about noise nuisance caused by her neighbours in May 2017, there has been no resolution to the problem. In particular, she complains about a lack of explanation from the Council for its actions while it has been investigating her complaint.
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 Miss X about her complaint and considered what she had to say. I wrote to the Council to make enquiries and have reviewed the material it sent in response.
- I have considered the law relevant to this complaint. Section 79 of the Environmental Protection Act 1990 explains the Council’s responsibilities with reports of statutory nuisance. The Housing Act 2004 provides the framework for decisions about the Housing Health and Safety Rating System (HHSRS).
- I have also considered guidance issued by the government in 2004 about HHSRS (‘Housing health and safety rating system (HHSRS): guidance for landlords and property-related professionals’) and have seen the Council’s local enforcement policy.
- I shared a copy of my draft decision with Miss X and the Council and I invited them to comment on it.
What I found
- Miss X complained to the Council in May 2017 about a noise nuisance being caused by the neighbours in the flat above her. Both her and her neighbours rent their flats from the same landlord.
- Section 79 of the Environmental Protection Act 1990 says where a complaint of a statutory nuisance is made to a council, it has to take ‘reasonably practicable steps’ to investigate the cause.
- Miss X was initially sent diary sheets to complete and did so, returning them to the Council in June.
- She says she heard nothing for over two weeks after sending the diary sheets in so contacted the Council by email to find out what was happening. Shortly after this, a case officer was assigned and contacted her. The Council accepts it would normally have aimed to allocate Miss X’s complaint within five working days of her returning the completed diary sheets. It says there was an administrative error when a spreadsheet was not updated by its contact centre staff after the diary sheets were received, and so its Environmental Health department was not aware action was needed.
- The case officer made enquiries to identify the occupiers of the flat above Miss X. and, around three weeks later, he was in contact with them by email. However, it took until late September for noise measuring equipment to be installed in Miss X’s flat. This was in place for 11 days and then removed for analysis. When the case officer reviewed the recordings a few days later, he initially wrote a case note saying, “excessive amount of bangs and thumps coming from the property above to the point of possible [statutory nuisance].”
- The case officer wrote to Miss X’s neighbours to tell them what his investigation had found. He says he was told a young child lived there and the neighbours felt there was poor sound insulation between the flats. The Council says in these circumstances it cannot find noise to be a statutory nuisance. This is because ‘everyday living noise’ does not meet the legal threshold.
- The Council explained this to Miss X in an email sent in mid-January 2018, after she wrote to the case officer complaining about the lack of action. When Miss X replied saying she was considering making a formal complaint about the Council’s response, the case officer replied saying he was, “looking at different legislation to resolve this matter”, but would need to carry out tests. He asked if Miss X would grant entry to her property to allow this to take place. It took until early February for a suitable date to be found.
- The legislation considered during the inspection was the Housing Act 2004, which created the Housing Health and Safety Rating System (HHSRS). Broadly, this exists to enable councils to identify and reduce many different types of hazards and poor conditions in rented accommodation. Serious hazards are classified as ‘Category 1’ and less-serious hazards as ‘Category 2’. The law says a council must act where it identifies a Category 1 hazard, whereas it has discretion about whether to take action for a Category 2 hazard. Possible action ranges from a warning notice, to a statutory notice instructing the owner to fix the problem and potentially even emergency prohibition or demolition in the most serious cases.
- When the Council inspected Miss X’s rented property, including the flat above, it identified a Category 1 hazard caused by inadequate sound insulation between the floors. The Council says it wrote to the owner of the property to give 14 days’ notice of its intention to issue an improvement notice. It says this is a standard practice in most local authorities and it did not need to serve an improvement notice because the owner’s agent got in touch within two days and said they were willing to carry out the necessary work. The Council says as the owner was willing to work with it, it felt formal action was not necessary.
- The Council was in contact with the agent from that point forward, asking for progress updates and technical specifications of the works that were going to be carried out. When there was some doubt the first proposal was not going to be enough, the Council challenged the agent and secured a higher specification of insulation. Miss X says she received no contact from the Council during this time and so was unaware of what was happening. The Council says it sent an email to Miss X around two weeks after the inspection in February to explain the steps it was taking to deal with the problem.
- Miss X says she then received no further updates. She complained to the Ombudsman in March and then again in June as a result. The owner of the property carried out the work to install sound insulation in August 2018. The Council says it is waiting to hear from Miss X if the work has been successful or not.
- It is not the role of the Ombudsman to replace the professional judgement of trained and experienced council officers with my own view of how a case should be resolved. In this case, it was for the Council to decide whether a statutory nuisance was being caused by the noise from the flat above Miss X. There is evidence the case officer considered that possibility but eventually ruled it out. He then moved on to consider how other legislation might be applied and, although it took some time after Miss X first made her complaint, a resolution was put in place.
- I can however consider the whether the process followed by the Council followed the law and guidance issued by the government. I can also consider whether there are any examples of service failure.
- The Council has accepted, in its response to me, the allocation of Miss X’s noise nuisance complaint in July 2017 went wrong. She returned the completed diary sheets but an administrative error prevented Environmental Health officers being aware it. Although there may sometimes be good reason for the Council not achieving its five day allocation target, I cannot see any such reasons apply here. The administrative error was fault, as it was avoidable and only came to light when Miss X chased a response.
- There is evidence of further delay when the case was allocated. Although the case officer spoke to Miss X almost immediately, the Council took nearly two months to arrange for noise monitoring equipment to be installed in her flat. Once it had been collected it was analysed quickly. However, there then followed another period without significant progress. Records show the case officer wrote to the occupiers of the flat above Miss X. However, by January 2018, she felt she had to complain to the case officer about his failure to answer her emails.
- The case officer’s response was that he had spoken to her neighbours and decided there was no statutory nuisance. He explained why and explained Miss X could consider taking her own action if she wished. Miss X responded to this expressing her disappointment and, around a week later, the case officer said he was looking at other legislation.
- Although the steps taken by the Council to investigate the noise, with diary sheets and noise measuring equipment, were proportionate to the issue complained about, I cannot accept taking six months to come to a decision was acceptable in this case. The Council says there were issues with staff sickness and staff availability, and only half the team are qualified to carry out noise investigations of this type. This clearly contributed to the delay. However, I would expect the Council have more robust measures in place to at least communicate the reasons for a delay to a complainant. There is no evidence that happened in this case and so I have concluded it was fault.
- Having found fault in the allocation process, and some avoidable delays in investigating Miss X’s concerns, I have concluded there was an injustice caused to her as a result. There is evidence that, on more than one occasion, Miss X had to chase updates or prompt action by the Council. It should apologise for her time and trouble in having to do so.
- Once the case officer decided to consider the HHSRS process, the timeline followed by the Council was satisfactory. I have seen evidence of contact it had with the owner’s agent and can see it involved good oversight of the proposed work. For example, the Council did not accept the first specification of works provided to it.
- Nevertheless, I have concluded the Council did not apply the law correctly. I understand the reasons given for its informal approach, particularly as it ultimately led to the required works being carried out. Normally a council can apply its discretion and not take formal enforcement action on a range of issues, where it believes informal action will achieve the same goal. However, section 5 of the Housing Act 2004 says the Council must take specific action when it identifies a Category 1 hazard. The law lists the options available and the 14 day notice it issued is not one of them. The Council told me the law is ‘badly worded’, as it leaves no room for discretion even if the landlord is willing to engage and has caused no past concerns.
- Although I can see why it makes this point, I have no choice but to find the Council’s approach was fault. The law says what must be done and, in this case, it has exercised discretion by taking informal action in this case where the law gives it none. However, the eventual positive outcome has a direct effect on whether any injustice was caused to Miss X as a result.
- I do not consider any obvious injustice was caused to Miss X as a result of the Council’s decision to not pursue formal action. Even if an improvement notice had been issued I do not believe the remedial works would have been completed any sooner. There may be situations where that is not the case however and the Council should review its application of the law in this area to be sure it is fulfilling its statutory obligations.
- Finally, I am not satisfied the Council kept Miss X sufficiently up to date while it was taking action under HHSRS. She says she did not know what was happening during this time and, although there is evidence the Council told her about its plans at the start, I cannot see how it kept her updated. One or two more emails or telephone calls between March and August would probably have been enough but, in their absence, I find this was also fault.
- This caused an injustice to Miss X, in the form of uncertainty about what was happening with her case and her time and trouble in having to complain to the Ombudsman more than once. The March complaint to us should have prompted the Council to keep in contact with Miss X but I cannot see any evidence showing that happened.
- By 9 December 2018, the Council has agreed to write to Miss X and apologise for:
- The delay in allocating her case to an officer to investigate;
- The time taken to reach a conclusion about her complaint of a statutory noise nuisance;
- The failure to keep her updated during the HHSRS phase of its investigation.
- There was fault by the Council in how it allocated Miss X’s case for allocation, the time taken to investigate her concerns and how it updated her once it applied different legislation. These all caused an injustice to Miss X in the form of uncertainty and time and trouble. The way the Council applied Housing Act legislation was also fault but this did not cause any injustice to Miss X.
Investigator's decision on behalf of the Ombudsman