Oldham Metropolitan Borough Council (18 002 699)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 06 Dec 2018

The Ombudsman's final decision:

Summary: Mrs X complains about the Council’s failure to act to prevent noise from a shared living unit near where she lives. The Council is at fault for not acting proactively to reduce noise from September 2017. This delay caused avoidable distress because of the ongoing noise, uncertainty about what action the Council would take and Mrs X had to make repeated complaints.

The complaint

  1. Mrs X complains about noise by clients of a shared living unit near her home that is operated by the Council. She says problems began in around September 2016 when she believes the Council changed its policy about who could live in the unit. She says clients are shouting, swearing and screaming at various points in the day. She says this can go on for hours without any intervention from staff at the unit. One client repeatedly bangs the door of his flat which is close to Mrs X’s bedroom. She says she complained both to the managers at the unit, the operator and the Council. The operator and the Council’s environmental health team took some action but this did not reduce the noise significantly. She says she was not able to use her garden during the summer months because of noise from the unit’s garden. On bad days she says she can hear the noise inside even with all the windows closed. She says this has had a significant impact on her social life and her health.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
  4. 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)
  5. There are no exceptional reasons to go back beyond 12 months in this case.
  6. 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

  1. I spoke to Mrs X about the complaint and considered the information she provided. I considered the Council’s replies to my enquiries.
  2. I considered the Ombudsman’s guidance on remedies.
  3. I gave the Council and Mrs X the opportunity to comment on two draft decisions. I considered their comments before making a final decision.

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What I found

  1. Where an adult needs care and support the Care Act 2014 says the council must assess their needs. If the adult has eligible needs the Council should prepare a care and support plan that sets out what support they need. This may include providing supported living. Councils should keep plans under review and should formally review the plan at least every 12 months.
  2. Councils must investigate complaints about noise that could be a statutory nuisance. The council must decide whether the nuisance substantially interferes with the person’s enjoyment of their property or if it is likely to injure their health. When deciding this the council should consider whether and how an ordinary person would be affected by the noise. If the council decides the noise amounts to a statutory nuisance it should consider enforcement action.
  3. It is a defence to enforcement action “to prove that the best practicable means were used to prevent, r to counteract the effects of, the nuisance”. (Environmental Protection Act 1990, section 80 (7)).

What happened

  1. A company owned by the Council operates a shared living unit close to where Mrs X lives. Mrs X says she has experienced problems with noise from clients at the unit since September 2016.
  2. Mrs X complained to the managers at the unit between September 2016 and April 2017. She then complained to the operator. Mrs X says the operator promised to take action but did not do so.
  3. Mrs X contacted the Council environmental health team in September 2017. An officer carried out noise monitoring. The Council’s record dated 14 September 2017 states the officer had listened to the recordings and considered the noise was a “potential nuisance”. The record stated the officer would speak to the manager at the unit. There is no record of further action by environmental health during 2017.
  4. I understand there was a meeting to discuss the situation in November 2017 involving the operator and neighbours. The operator responded formally in January 2018. It said it was:
    • taking the concerns seriously but it could not give information about actions relating to specific individuals because of data protection and privacy;
    • looking at providing sound proofing to parts of the building to reduce noise from inside; and was
    • working with other professionals to find strategies to better manage noisy situations in the outside space.
  5. Mrs X made a further complaint and there was another meeting in January 2018. The minutes of that meeting state the operator accepted some specific service users had caused noise that affected the quality of life of local residents. The operator felt the unit was appropriate for those service users and said there were plans in place to support them. It said the plans were regularly updated and the operator had support from external professionals. The operator confirmed that work was due to begin on soundproofing in February 2018.
  6. The situation did not improve and Mrs X raised further concerns between January and April 2018. The operator emailed Mrs X on 4 April 2018 to confirm the soundproofing was now installed and one service user would be moved. The manager explained the two other residents causing concern could not control their outbursts and were not intentionally being offensive with their language. It said the behaviour could not therefore be viewed as anti-social behaviour. It said there was nothing more it could do.
  7. Mrs X complained to the Council in May 2018. The Council refused to investigate the complaint because it said the operator had installed sound proofing and there was nothing more it could do.
  8. Mrs X contacted the environmental health team again in June 2018. It carried out further noise monitoring and decided the noise amounted to a statutory nuisance. Mrs X says the officer told her he was intending to serve a noise abatement notice and had arranged a meeting with the operator to discuss this on 27 July 2018. This was the position when I first spoke to her in July 2018. Later she explained that at that meeting the officer became aware the company operating the unit was wholly owned by the Council, which meant the notice could not be served.
  9. In its replies to my enquiries the Council explained that it had carefully considered whether the unit was appropriate for the two male service users that are causing the noise nuisance. I have seen the formal assessments carried out at the time. I have also seen a recent review of the suitability of the placement for the two individuals.
  10. In its replies to my enquiries the Council said it had contacted a noise consultant and would consider any recommendations the noise consultant makes. It also said it was working with the landlord of the building (not connected to the Council) with a view to either planting a tall hedge or replacing the fence to provide a barrier for noise and overlooking from the unit. In its comments on the first draft decision it said it had no mandate for taking action until a statutory nuisance was established in July 2018. It said in statutory nuisance cases it would always consider informal action before taking formal action, such as issuing an abatement notice.
  11. The Council also says the noise the residents are making is a consequence of their disability. It says it cannot move the residents because it has duties to them under the Equality Act 2010 and also they have rights as tenants.

My findings

  1. The operator is wholly owned by the Council and therefore I can consider its actions as if they were the Council’s. I therefore consider the Council is responsible for any noise nuisance and any failure to respond to the complaints Mrs X has made.
  2. I am satisfied the Council appropriately assessed whether the unit was suitable for the two service users that are causing the noise before they moved there. It is not clear whether this was kept under review but I am satisfied that it has been reviewed recently.
  3. Mrs X says she complained to the managers at the unit between September 2016 and April 2017. I have not seen any documents relating to this period. I have investigated events from September 2017 onwards.
  4. By September 2017 a Council officer had carried out noise recording and considered the noise was a “potential nuisance”. The record states the officer discussed with the operator what action could be taken to address this. There is no record of any follow-up action by the environmental health team but it is clear this part of the Council was aware the level of noise may be sufficient to amount to a statutory nuisance.
  5. In November 2017 the operator agreed to install sound proofing in certain parts of the building and this was installed in February 2018. This reduced the noise from one particular flat but did not prevent noise from a service user repeatedly banging his door, not did it address noise from the outdoor areas. I also understand a female service user did move but I do not know when this happened.
  6. Mrs X contacted the Council’s environmental health team again in June 2018 and in July 2018 it decided the noise amounted to a statutory nuisance. The Council says it did not have a mandate for formal action until this point.
  7. Mrs X told the investigator in their initial conversation the Environmental Health officer had told her he was intending to serve an abatement notice. She subsequently said she was told he couldn’t do so because the operator was council owned. By this stage, informal discussions had been underway for a year and although some action had been taken the noise was still sufficient to amount to a statutory nuisance. Therefore, I would expect the Council to have then considered formal action. It could not serve an abatement notice in this case because the operator is Council owned. Mrs X should not be disadvantaged because the operator is Council owned. The Council should have been prepared to take the same action it would have required from an operator that was not Council owned to mitigate the noise nuisance. It should therefore show that “best practical means were used to prevent, or to counteract the effects of, the nuisance”.
  8. Whilst the Council has duties towards the residents of the unit it needs to balance these against the needs of the neighbours who are affected by the noise nuisance. It has now contacted a noise consultant who will make recommendations about how to reduce the impact of noise from the unit on local residents. The Council will review the consultant’s recommendations and will consider what action is appropriate. Therefore, I am satisfied it is now taking appropriate action to address the problem. However, I consider it could have done this earlier given that its officers were aware the noise potentially amounted to a statutory nuisance in September 2017 and Mrs X has complained repeatedly since September 2016.
  9. On balance, I consider the Council has not been sufficiently proactive and its delay in taking action to resolve the issue of noise, particularly from the unit’s outside space is fault. This fault means Mrs X has had to endure another summer of noise. It also means Mrs X has been put to additional time and trouble pursuing complaints after the initial noise monitoring in 2017.

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Agreed action

  1. The Council will, within one month of the date of the final decision:
    • Apologise to Mrs X for the delay in taking proactive steps to resolve the issue of noise from the unit’s outside space; and
    • Pay Mrs X £150 to reflect the time and trouble of making repeated complaints between September 2017 and July 2018.
  2. The Council will, within three months of the date of the final decision, write to Mrs X and the Ombudsman to explain how it has considered the noise expert’s recommendations and what action it intends to take.

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Final decision

  1. I have completed my investigation. I have found fault leading to personal injustice. I have recommended actions to remedy injustice caused to Mrs X.

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Investigator's decision on behalf of the Ombudsman

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