The Ombudsman's final decision:
Summary: Miss P complains about the Council’s inaction about complaints she has been making about nuisance from a school. The Ombudsman sees no evidence of fault in the Council’s investigation. So we cannot question the merits of the Council’s view there was no evidence of a statutory nuisance.
- The complainant, whom I shall refer to as Miss P, complains the Council has:
- failed to act about noise caused by a school gate near to her property, and noise caused by speed humps within the school grounds;
- failed to take action against people smoking by the gate directly outside her home;
- has not stopped early visits to the school by refuse collection lorries;
- visited during school holidays, which is why officers did not witness the problems;
- said it would install monitoring equipment but then did not do so;
- not responded to some of her emails. This is despite it knowing that, due to her disability, timely communications are important to her, as a reasonable adjustment;
- given her direct contact details for the school. But these were for staff working for a contractor, a company which no longer works at the school.
- Miss P says the issues have being going on since 2010. But because of the rules about what the Ombudsman can investigate, I have only looked at issues back to mid-2017, which is a year before Miss P’s complaint to the Ombudsman.
The Ombudsman’s role and powers
- 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)
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
- We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as academy schools. (Local Government Act 1974, sections 25 and 34(1), 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
- As part of the investigation, I have:
- considered the complaint and the documents provided by Miss P;
- made enquiries of the Council and considered its response;
- spoken to Miss P;
- written to Miss P and the Council with my draft decision and given them an opportunity to comment.
What I found
- The Council’s Environmental and Safety Team provides a service to investigate complaints of statutory nuisance. The statutory provisions relating to nuisance can be found in the Environmental Protection Act 1990. Noise can amount to a statutory nuisance. If an officer witnesses noise which in her opinion amounts to statutory nuisance, she may initiate enforcement action to stop the nuisance and prevent its recurrence.
- The Environmental Protection Act says that where a company/contractor can show they have taken the ‘best practicable means’ to prevent or minimise a nuisance, this is a defence against a claim of statutory nuisance.
- Miss P lives in a house close to the gates of an academy school. She has been complaining since 2010 about the school’s staff entrance gate and speed humps. As a response to earlier issues, the school agreed to fit self-closing gates to prevent the gate banging.
- In 2016 Miss P made new complaints about noise from the gate and that school staff were smoking outside her property. The Council’s officer (Officer Q) visited and sent Miss P diary sheets. In March 2017 she closed her file about that complaint.
- In June 2017 Miss P made new complaints about the gates, smoking and litter. Over the following months, she also reported incidents of rubbish collection lorries causing a nuisance, by attending the school in the early morning.
- Officer Q visited on 14 June. Her note of the visit records her view that the noise from the gate was not loud or frequent enough to amount to a statutory nuisance. Although this meant there was no formal action the Council could take, the Councils records show, because Miss P said she did not want to contact the school herself, Officer Q took some informal actions:
- She contacted the school’s facility manager (an employee of a contractor) each time Miss P reported an early visit by a bin lorry. Miss P reported seven incidents in the following seven months.
- She wrote to the school about the gate to suggest further changes it could make. The school made some further changes to the gate.
- She asked a different part of the Council to get an officer to walk by the gate to see if they could witness the smoking Miss P reported. Although the Council has no powers to stop the smoking, it did have powers to issue fixed penalty littering fines if an officer witnessed someone dropping a cigarette end.
- An officer from the other Council department visited the school and gave the headteacher some small portable ash tray pouches to her staff. The officer also asked that her staff did not gather outside Miss P’s house.
Was there fault by the Council?
- I can well understand Miss P’s awareness of the issues she complains about. But this is not itself evidence of a statutory nuisance the Council could do something about. To take action, the Council would need evidence it could use in court. As a start, this would need to include its officers witnessing the alleged nuisance.
- The Council says the evidence it has is not enough for it to consider action. My view is the Council’s records show it undertook a proportionate investigation. It did visit during term time. And it has tried informally to resolve the issues. I see no evidence of fault. So I cannot question the merits of the Council’s view that the issues Miss P is concerned about were not enough to constitute a statutory nuisance.
- My decision is there was no fault by the Council. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman