Summary: The Ombudsman has not investigated two of Ms B’s complaints as the first complaint relates to events that happened more than a year ago and the second complaint was considered by the Information Commissioner’s Office. However, there was fault in the way the Council restricted Ms B’s access to the Noise and Nuisance team and the Council should review this.

The complaint

1. Ms B says the Council:
2. Has not properly addressed her claims that the noise from her neighbour’s property is a statutory nuisance.
3. Has inaccurate data about her medical health on its files and has shared this information.
4. Has instructed its officers not to respond to any further noise complaints by her.

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What I have investigated

5. I have investigated the complaint about the Council’s restriction on how it responds to Ms B’s noise complaints. Paragraphs 42 and 43 explain why I have not investigated Ms B’s other complaints.

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The Ombudsman’s role and powers

6. 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)
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
9. 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

10. I have discussed the complaint with Ms B and I have considered the documents that she and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

11. Councils must look into complaints about noise that could be a statutory nuisance (covered by the Environmental Protection Act 1990).
12. For a noise to count as a 'statutory nuisance' it must do one of the following:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other premises.
• Injure health or be likely to injure health.
13. The statutory nuisance must be witnessed by an Environmental Health Officer and they will come to an independent judgement.

Complaints process

14. The Council has a corporate complaints process. This says:
15. There is an initial informal stage where the Council will try to resolve the complaint within the department. If the complainant is not satisfied with the response, they can then take their complaint through the Council’s formal three stage complaints process.
16. At stage 1 someone from within the department will reply within 15 working days of receipt of the complaint.
• At stage 2, the head of the relevant section will reply within 15 working days.
• At stage 3, the Director or Executive Director will review the complaint within 15 working days.
• After stage 3, the complainant can take the matter to the Ombudsman.
17. The Noise and Nuisance Team has a leaflet which sets out its own complaints process. This says the manager will reply to a complaint within 10 days. If a person is unhappy with this response, the Director of the service will investigate it and reply within 28 days.

History

18. Ms B rents a flat from a housing association. She made a number of complaints about noise from the flat above her, such as banging noises, doors slamming, shouting, screaming and swearing since 2014. Ms B said her neighbours were making these noises deliberately to harass her. The Council noted there was a history of complaints from Ms B about her neighbours and Ms B had also complained about the neighbours to the housing association.
19. The Council installed a noise recording device on 28 January 2015 which recorded noise until 1 February 2015. The Council’s environmental health officer said that, in his opinion, the recordings showed normal domestic noise, not statutory noise nuisance and the Council could not take any action.
20. Mr B made further complaints about noise in 2016. The Council officer visited Ms B’s home on 21 June 2016, but did not witness a noise.
21. The Council officer visited Ms B’s home on 27 September 2016. He heard low level impact noise and the noise of a door slamming. He noted that a door closing mechanism had been installed before but this did not seem to be working anymore. Following this visit, the officer contacted the housing association on 29 September 2016 and asked whether the door closing mechanism could be repaired or adjusted. The housing association replied that Ms B’s neighbours owned their flat, so it could not intervene.
22. Another council officer visited Ms B’s home on 5 October 2016 and stayed in the flat for over an hour. The Council wrote to Ms B with its conclusions and said that the noise that the officer witnessed was not a statutory noise nuisance. It said the noises Ms B complained about were normal domestic noise. It said the Council would close the matter and it had instructed officers not to respond to further complaints.
23. The Council said mediation between Ms B and her neighbours may be the best way forward. Ms B says her neighbours declined mediation.
24. Ms B continued to call the Council saying that the neighbours were making noise.
25. On 9 November 2016, the Council set out its position again and said the matter was closed. It asked Ms B to stop calling the service and said it would instruct the call centre and the officers to decline her calls. It said she should contact her housing association if there were any tenancy issues and if, following investigation by the housing association, the housing association was of the view that the Council’s Noise and Nuisance Team could be of assistance, then the Council would assist.
26. The Council confirmed its position in December 2016. It said that the noises that Ms B heard from the neighbouring flat were ‘normal’ domestic noises that did not meet the threshold of being a statutory nuisance. It said it may well be that these noises distressed Ms B but that did not mean that they were actionable under the legislation.
27. Ms B did not contact the Noise and Nuisance Team for over a year.
28. Ms B rang the Council on 1 January 2018 to report loud banging and heavy items being dropped at her neighbours’ property. The Council said it had withdrawn a service from Ms B and she had to contact her housing provider first.
29. Ms B made a complaint to the Ombudsman in January 2018 about the Council’s response to her noise issues and about information the Council held about her on its records. The Ombudsman advised Ms B that she had to make her complaint to the Council first as the Ombudsman would not normally consider complaints which had not yet gone through the Council’s own complaints procedure.
30. Ms B sent her complaint to the Council on 19 February 2018 (reply was due by 12 March 2018). Her complaint related to the Council’s actions from 2014 onwards. She said the Council had never properly investigated her noise nuisance complaints. She did not agree with the Council’s position that it would not further investigate the complaint and that she needed to contact her housing provider instead. She said the housing provider was not qualified to determine whether something was a noise nuisance or not.
31. Ms B emailed the Council on 4 March 2018 and asked to go straight to stage 2 of the process.
32. The Council agreed on 9 March 2018 to respond at stage 2 of the process. It also asked Ms B for further information it needed to be able to investigate her complaint. Ms B gave the information on 13 April 2018 and the Council sent its stage two response on 20 April 2018. However, it sent it in a format that was not adjusted to Ms B’s disability. It sent its stage three response on 18 May 2018 in response to Ms B’s request dated 25 April 2018.
33. It did not uphold Ms B’s complaint. It said it had investigated her noise complaints and the noise she experienced was not a statutory nuisance. It said it would not investigate the same noise complaint again and it had explained to her she had to contact her housing provider first. It acknowledged the fault in not sending the complaint response in the correct format and apologised for this.
34. As part of the complaints process, the manager of the Noise and Nuisance Team offered to visit Ms B’s home as a way forward. The Council said the purpose of this visit was to see first-hand what the layout of Ms B’s home was, to determine the precise nature of the issues she was experiencing and explore whether there was another way to resolve the problems. It said that there was little point, given the short-term nature of the noises she experienced, in the Council’s call out service assisting.

Analysis

35. The Council has a duty to look into noise that could be a statutory nuisance. However, there is no duty for the Council to investigate the same noise nuisance complaint again and again.
36. Ms B did not agree with the Council’s assessment that her noise complaint was not a nuisance and that the Council would therefore not take further action. She therefore continued to raise the same noise complaint that the Council said it had already investigated.
37. The Council restricted Ms B’s access to the Noise and Nuisance team in response and said it would not respond to her calls anymore unless her housing provider made a referral.
38. I accept the Council can put restrictions on a person’s communications with the Noise and Nuisance Team. However, these restrictions should be reasonable and I would have expected them to be time limited and reviewed. The Council is at fault as it has set a permanent restriction on Ms B’s access to the service without any time limit or review. Also, the housing provider may be well experienced in dealing with neighbour complaints, but it is not trained as an environmental health officer so it would not be able to assess whether the noise complaint Ms B raised was a new or different complaint and should be investigated or not. That was a decision that only an environmental health officer could make.
39. I note the Council has offered Ms B a visit by the manager of the Noise and Nuisance team to her home to see the layout and assess the nature of the issues she is experiencing. That is a reasonable way forward to hopefully resolve the issues.
40. Ms B has also complained about the Council’s response to her complaint. She says the Council has not replied within the timescales set out in its complaints process and has not adhered to the two-stage process.
41. The Council took the complaint straight to the three-stage corporate process. I find no fault in that as there was little to be gained to go through the Noise and Nuisance Team’s complaints process again, particularly as Ms B wanted to make a complaint to the Ombudsman which she could only do after going through the corporate complaint process.
42. The Council has already apologised for the fault in sending the email without the reasonable adjustment for Ms B’s disability. In terms of the timescales, there is no evidence of fault. The Council agreed to go straight to stage 2 at Ms B’s request. It provided the responses within the timescales once it had received Ms B’s further information it had requested.

Agreed action

43. The Council has already offered Ms B a visit by the manager of the Noise and Nuisance team and I agree that this is a good suggestion.
44. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise to Ms B in writing.
• Review the restriction it imposes on her access to its noise nuisance service. Any restriction should be time limited, reviewed regularly and should not delegate the Council’s statutory duty to investigate a new complaint about noise that has not been investigated before.

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Final decision

45. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Parts of the complaint that I did not investigate

46. I have not investigated Ms B’s complaints about the way the Council investigated her noise complaints from 2014 to 2016 as these complaints relate to events from more than a year ago and Ms B could have made a complaint about these matters at the time.
47. I have not investigated Ms B’s complaint that the Council has inaccurate data on its file as this complaint has been dealt with by the Information Commissioner’s Office.

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Investigator's decision on behalf of the Ombudsman