Summary: Ms D complains that the Council has failed to take appropriate action to respond to her complaints about noise nuisance from the flat below. The Ombudsman has found no significant fault in the way the Council’s Environmental Health team has responded to her concerns. The actions of the Council’s Housing team are outside the Ombudsman’s jurisdiction.

The complaint

1. Ms D complains that the Council failed to properly investigate her reports of loud music played by the tenant in the flat below between July 2017 and April 2018.
2. She says she contacted the Council’s Environmental Health team more than 50 times from July 2017 but on seven or eight occasions they did not reply and on other occasions only responded once the noise had stopped. She says the Council twice provided faulty noise-recording equipment and officers made unprofessional comments to her.
3. She considers that, if the Council cannot find enough evidence of a statutory nuisance to take action, then the Council’s Housing Department should take action ensure that her neighbour include the terms of the head lease in any sub-letting. She is unhappy with the way that Housing Department has dealt with matters, and with statements that her Housing Officer has made about her.
4. She says the noise problems made it hard for her to sleep and this has had a significant effect on her mental health, and she incurred costs of £1,500 in installing soundproofing which still did not prove effective.

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What I have investigated

5. I have investigated the way the Council’s Environmental Health Team investigated Ms D’s complaint about noise nuisance. For the reasons set out below, I have not investigated the actions of the Housing Department in relation to Ms D’s complaints about noise and antisocial behaviour.

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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. 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)
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 cannot investigate complaints about the provision or management of housing let on a long lease by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5B, schedule 5, as amended)

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How I considered this complaint

9. I have considered Ms D’s written complaint and the notes of the previous investigator’s conversation with her. I have considered the Council’s responses to the Ombudsman’s enquiries and supporting papers. I have also sent Ms D and the Council a draft decision and considered their comments.

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What I found

10. Councils must to take such steps as are reasonably practicable to investigate complaints about noise that could be a “statutory nuisance” (covered by the Environmental Protection Act 1990). The noise complained about might be loud music, barking dogs, noisy neighbours, rowdy pubs or noise from industrial, trade or business premises.
11. 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.
12. The statutory nuisance must be witnessed by an Environmental Health Officer, who will come to an independent judgement. The process of determining what level of noise constitutes a nuisance can be quite subjective. Officers may take account of factors such as the level of noise, its length, timing, location and the view of the average person in deciding whether a statutory nuisance has actually occurred.
13. If an officer decides that a statutory nuisance is happening, or will happen in the future, councils must serve an “abatement notice”. This requires whoever is responsible to stop or restrict the noise. If someone does not comply with an abatement notice they can be prosecuted and fined. The abatement notice can be delayed for up to 7 days while the council tries to get the person responsible to stop or restrict the noise.
14. Those served with an abatement notice can appeal to a Magistrates Court. In certain cases, people who have used the best practicable means to stop or reduce the noise nuisance may be able to use this as grounds for appeal or a defence if prosecuted. Best practicable means involves having regard to local conditions and circumstances, the current state of technological knowledge and financial implications.
15. It is also open to members of the public to bring their own case to the Magistrates Court and ask it to serve an abatement notice.
16. Councils can also decide to take informal action if the noise complained about is causing a nuisance but is not a statutory nuisance. They may meet with or write to the person causing the nuisance or suggest mediation. Councils should have a policy or procedure to explain what it will do.

What happened

17. Ms D lives in the upper flat of a period terraced house converted in two flats. The Council is the freeholder of the house. Ms D part-owns and part-rents her flat through a shared ownership agreement with a Housing Association.
18. The flat below is owned by a leaseholder (the landlord) who lets it out. In June 2017, new tenants moved into the flat below. In early July, Ms D reported loud music in the morning and afternoon. There was a delay of around two hours before an officer left a message for Ms D to call back. An officer then contacted Ms D in the afternoon. She explained that the music had stopped and she did not want the Council to send a warning letter. She made further reports later that month of music after 11.00pm and the next day at 1.00pm. In both cases she called back to say the music had stopped. She still did not want a warning letter sent.
19. In August, Ms D reported loud music one day at around 8.00pm, and then intermittent noise of music and door slamming at around 11.00pm. The case officer spoke with Ms D on both occasions and advised sending a letter to the neighbours as it would be difficult to witness intermittent noise. A letter was sent to the neighbours setting out the allegations.
20. A few days later, the case officer spoke with the tenant who considered that they were not noisy and were being unfairly harassed. Ms D made a complaint later that day around 8.00pm and visited around 40 minutes later by which time the noise had stopped.
21. The next day, Ms D reported loud music around 5.00pm. An officer called within half an hour to advise that they could not attend as the day service was ending, but they could either send a letter or refer the matter to the night team. Ms D advised the officer not to come.
22. Soon after, Ms D was advised that officers needed to witness noise but, if this was unsuccessful, they could consider proactive visits. The same day Ms D raised concerns about loud music and construction noise around 1.30pm. An officer called back within half an hour and was told that the construction noise had stopped. The music then stopped within the hour. Ms D then made further complaints about loud radio noise in the morning. A few days later, she called about noise at lunchtime. An officer called within 30 minutes and the noise stopped within the hour.
23. Towards the end of the month, Ms D reported noise from a party in the neighbouring flat just after midnight. The Council’s records state that an officer visited around half an hour later, though Ms D suggests that it was over an hour and a half later.
24. The Council’s records state that the music stopped, but then started again within a few minutes at a louder level. The officer witnessed “loud music and raised voices which have prevented or disturbed sleep” and this would therefore be classed as a Statutory Nuisance. Ms D says the officer told her that people had the right to enjoy themselves and he appeared more interested in her neighbour’s rights than her own.
25. The notes do not record whether the officer asked the tenant to turn the music off before he left, but Ms D says the music stopped for around 10 minutes before restarting. She says she called the Council back soon after the officer left and then waited an hour for a response. However, the Council’s records indicate that she called at around 2.00am, the Council called her back at 2.30am and the officer returned at 3.00am by which time there was no noise. The officer confirmed that he would send a warning letter.
26. Ms D reported daytime noise again soon after. She then escalated her concerns to a manager as she was could not get hold of the case officer. The manager explained the steps being taken and a warning letter was sent to the tenant.
27. Soon after, Ms D reported loud music and slamming doors in the early evening. An officer called back after 15 minutes by which time the noise had stopped. The manager then asked the case officer to consider installing noise recording equipment due to the intermittent nature of the noise.
28. Ms D made a further report of noise after 12.00pm but this had stopped when the officer visited 15 minutes later. The officer explained that to take further action they needed to witness noise at an unreasonable level for a long duration.
29. After a further report of evening noise, Ms D explained that the noise always stopped just before officers visited. Ms D was advised to make a diary to see if a pattern could be identified which might help in allowing officers to undertake proactive visits.
30. The case officer advised the manager that he felt it premature to install noise recording equipment as the noise needed to be further witnessed. The officer was unable to follow up a lunchtime report of intermittent noise due to blocked roads.
31. Ms D then reported evening noise which stopped after 15 minutes, before the officer attended. The officer then made a proactive visit at 11.30 pm the next day but witnessed no noise over a half hour period.
32. Ms D made further reports of loud music and a party on successive mornings, but the noise stopped before it could be witnessed. In early October, she complained about construction noise and was advised that a reasonable cut-off point would be 9.00pm.
33. In mid-October, the Council installed noise recording equipment in Ms D’s home for a week. Ms D reported that it was not working so an officer visited. He felt that the recording equipment was in working order, but it was possible that the sound meter had stopped working, so he reset the equipment and changed the memory card.
34. Having collected the recording equipment, the officer listening to the recording could clearly hear voices on the radio but felt that this was likely due to the floor being worked on and resulting in poor insulation. The later sounds were mostly bass, which suggested the insulation was improved but the volume excessive. The officer explained that the noise levels were sufficient to take formal action but, as this was only for a few minutes and in the afternoon, the Council would need to gather further evidence. The officer agreed to install the equipment again.
35. Later that month, Ms D made further reports about loud music and banging in mid-afternoon, however the reactive service was unavailable due to other commitments. She then made a further report about noise in the evening, but this had stopped when the officer called back after 25 minutes.
36. The Council installed noise recording equipment again in November. Ms D then reported noise in the early evening but said the recording equipment had stopped working. The officer visited a couple of days later. He found the recording equipment in working order but reset it.
37. In December, Ms D reported loud music one lunchtime but this had stopped by the time an officer visited 20 minutes later.
38. In January 2018, the Council again installed noise recording equipment. Around two weeks later, Ms D called to say that it had stopped working due to a power cut. She then called at around 9.00pm to report loud music. An officer called back within an hour and was told the noise had stopped. The Council again wrote to the tenant.
39. In late February, Ms D called the Council at 9.00am and complained that there had been loud music from 8.00am. An officer called back five minutes later but the music had stopped.
40. In March, Ms D called reporting loud noise from a radio in the morning and to say that she had been experiencing intermittent problems over the previous month. An officer visited around an hour later, by which time the noise had stopped. Ms D then explained that the noise had caused her to lose sleep and this had affected her mental health.
41. At the end of the month, the Council again installed noise recording equipment but removed it shortly after as the tenant had moved out.

My assessment

Investigation of noise complaints

42. I appreciate that Ms D does not feel that the Council has taken appropriate action to deal with her complaints about noise nuisance. She says that officers have not given her case sufficient priority given the intermittent nature of the problems. But officers have undertaken a range of steps to investigate her concerns.
43. Officers have:
• responded to her calls either by telephone or by visiting on numerous occasions, generally within an hour or less;
• written to both the landlord and tenant about the noise;
• installed recording equipment on three occasions before the tenant moved out (and once after) but, although on one occasion the noise was felt to be at a level which might justify formal action, this was not felt to be of sufficient duration to justify taking formal action;
• undertaken both reactive and proactive visits, but only observed a statutory nuisance on one occasion in August 2017 after which they sent a warning letter;
• surveyed other parties but received no other reports of noise nuisance; and
• reviewed the diary sheets that Ms D provided and explained why they did not consider that these constituted evidence of statutory nuisance.
44. I am aware that, on some occasions, officers did not return calls or visit as promptly as Ms D may have wished. But officers cannot always to respond within the timeframes that Ms D would wish, given their other commitments.
45. Overall, it seems to me that the Council has expended considerable time, energy and officer resources in investigating Ms D’s complaint. It was for officers to judge whether the noise constituted a statutory nuisance, having regard among other things, to the length, timing, location and the view of the average person. The fact that, on most occasions, the noise was both of a short duration and occurred during daytime hours adds weight to officers’ professional judgment that there was not enough evidence for them to take further action.
46. I see no evidence of any significant fault in the way the Council’s Environmental Health team has responded to her complaints

Faulty noise recording equipment

47. Ms D says the Council provided her with faulty noise recording equipment. She says the equipment was six or seven years old. She says the first time she was lent the equipment there was a faulty card which was replaced, and the device had to be reset the second time she borrowed it due to a power cut. She says the equipment did not work the third time. She says, by the time the Council provided a new machine on the fourth occasion, the tenant had moved out.
48. The Council has explained the following:
• Ms D had recording equipment on three occasions (before the tenant moved out) and each time different equipment was used.
• All equipment was checked before installation and the officer personally confirmed that the recording equipment was working before installing it in Ms D’s home.
• If any fault is noted, equipment will be fully checked by an experienced Area Senior Officer and sent to be repaired if faulty.
• When Ms D reported that the equipment was not working, it was not found to be faulty.
49. I see no fault here.

Environmental Health Officer comments

50. Ms D has complained that an Environmental Health Officer referred to her as a “complainer”.
51. The officer concerned has explained that he visited Ms D in her home in October 2017 and did not say this. He said he would never comment on the reputation of a resident, and the number of complaints that Ms D has made was of no relevance to his investigation.
52. As I was not present, I am unable to determine what was said. But I see no evidence that the officer has failed to investigate Ms D’s complaint properly.
53. Ms D says she telephoned the Environmental Health Manager discuss how her case could be moved on. She says he said he would “send a nice-looking chap” to stay with her for the week. She says that, soon after, she emailed the Manager to complain about his comments which she felt were inappropriate and sexist, but she never received a response.
54. The Manager says he gave generic advice as there are professional witness services which can assist. He has no recollection of making any such comments or an email from Ms D, though I note that Ms D made these comments in an email dated 29 January 2018. However, Ms D did not complain about this at the time. I was not a party to the conversation, So I cannot determine what was said.

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Final decision

55. I have closed my investigation into Ms D’s complaint because I have found no significant fault in the way the Council responded to her complaints about noise nuisance.

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Parts of the complaint that I did not investigate

56. Ms D considers that the Council’s Housing Department and / or the landlord of the flat below should enforce the head lease which does not require a statutory nuisance to be proven. The lease states, among other things, that it is not permitted to do:

“anything which shall be or tend to be a nuisance or annoyance or cause of damage to the lessee or other occupants of the building and or to any neighbouring buildings… [including]… “no piano, pianola, gramophone, wireless, loudspeaker, television or mechanical or other musical instrument of any kind to be played or use... as to cause annoyance.”

57. The decision whether or not to take action under the lease is a function of the Council as a social housing provider, and so is outside the Ombudsman’s jurisdiction.

Actions of the Housing Department / Housing Officer

58. Ms D considers that the Housing Department has not taken adequate action to assist her. She is also unhappy with comments made by and the actions of her Housing Officer.
59. The actions of the Housing Department and Ms D’s Housing Officer in relation to Ms D’s complaints about noise and antisocial behaviour are functions of the Council as a social housing provider, and so are outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman