The Ombudsman's final decision:
Summary: Ms X complains about the Council’s investigation of her reports of noise nuisance from a nearby pub. There was fault by the Council because it disregarded noise from people leaving the pub when it served a noise abatement notice and there was unreasonable delay in its investigations. The Council agreed to remedy the injustice to Ms X by extending its nuisance investigation and making a payment to reflect the distress she suffered.
- Ms X complains about the Council’s investigation of her reports of noise nuisance from a nearby pub.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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 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)
- 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 reviewed the complaint and background information provided by Ms X and the Council. I discussed matters with Ms X by telephone. I sent a draft decision statement to Ms X and the Council and considered the comments of both parties on it.
What I found
- Due to the time restriction I cannot consider Ms X’s complaint about the Council’s actions as far back as the 10 years set out in her letter of complaint. But I have exercised the Ombudsman’s discretion to consider matters from 2017.
- Ms X’s complaint relates to the Council’s handling of noise complaints relating to a pub close to where she lives. The pub has a license to operate until 3am on Saturdays and Sundays. It also receives frequent extensions until 5am through temporary event notifications. Ms X says there have been a number of noise abatement notices served against the pub to no effect.
- The Council served a notice abatement notice on the pub in December 2015. Between June 2016 and April 2017, Ms X recalls making more than 35 telephone calls to the Council’s out of hours service but says the service did not respond to any of her requests to attend to witness breaches of the abatement order.
- Ms X says she repeatedly asked her case officer to contact her during that period but he only did so in April 2017. Through a subject access request Ms X made recently, she found out there were several breaches of the abatement order noted in noise recording equipment the Council installed in the home of another resident who lives close to the pub. Ms X says the Council did not act on this evidence and only decided to reset a noise limiter it had installed in the pub.
- Ms X says she made more than 30 calls to the out of hours service between December 2017 and July 2018. She was not contacted by officers to make arrangements to witness the noise and gather evidence.
- Ms X found out the previous case officer was no longer dealing with her case in July 2018 and it had been passed to the Neighbourhood Enforcement Team Leader. Ms X met with this officer and a colleague at her home on a Saturday morning in July 2018. Ms X discussed her concerns with the officer. The team leader raised the matter of noise from people leaving the pub as well as loud music from the pub. Ms X’s understanding was that the Council could do nothing about noise from people outside the pub. This was what the previous case officer told her. However, the team leader said this information was wrong and noise from people could be addressed in the abatement notice.
- Following the visit, the Council served a new noise abatement notice against the pub. Ms X asked officers if the notice covered loud music as well as noise from people but says officers would not answer her questions. The notice only covered noise from music.
- Ms X says the case officer assured her the Council was monitoring the pub for breaches of the abatement notice. However, she was not contacted by officers seeking evidence of a breach.
- Ms X made a formal complaint in October 2018. She received a response from the neighbourhood enforcement team manager in November 2018. The manager said her team had only taken the case in 2018 and so she could not comment on actions before the takeover. The manager said when they took on the case the then existing abatement notice was too old to enforce. However, the manager apologised that Ms X had not received detailed responses from her team.
- There was an exchange of emails between Ms X and the team manager before Ms X asked for an escalation of her complaint to the final stage of the Council’s complaint process. Ms X was disturbed by the manager’s statement that her case would have been prioritised by the case officer had Ms X contacted him whereas Ms X had been chasing matters with the case officer as well as the enforcement team leader.
- The stage two complaint response said the neighbourhood enforcement team had acted in a reasonable and proportionate manner to the reports Ms X made. It said communication with Ms X could have been better and apologised. The Council said the pattern of significant disturbance appeared to centre around dates when the pub applied for temporary event notices. So, officers would in future object to the licence applications. The Council advised Ms X to continue to report any noise issues through its ‘noise app’. It said the enforcement team would continue to take appropriate action when it receives reports of noise nuisance.
- In addition to its complaint responses, I have seen documents in which the Council explained that its enforcement officers could not always visit the pub to witness any noise nuisance because they have to attend to priority cases. The case officer, for instance, explained to Ms X that he would advise field officers to visit the pub to witness a nuisance but there was a difficulty obtaining evidence in the early hours of the morning.
- Ms X provided this service with background evidence on the Council’s noise nuisance investigation which she obtained through a service access request. I have seen the notes made by officers going back to 2017. I have also seen the handwritten notes made by officers following their meeting with Ms X at her home in July 2018. I will not set out the detail of these documents for the sake of brevity but it is important to note that I am aware of them and have read them.
The monitoring of the noise abatement notice
- I find fault with the Council’s monitoring of noise nuisance from the pub. The Council served a noise abatement notice in the summer of 2018 because officers were satisfied there was a statutory nuisance. But afterwards, minimal efforts were made to monitor the pub for breaches of the notice. A case where officers have already satisfied themselves of the existence of a statutory nuisance should automatically have high priority precisely because of the existence of a statutory nuisance.
- I consider officers placed insufficient priority on monitoring nuisance from the pub. From reading the background papers, I am also concerned that no attempts were made to investigate the issue of noise from people leaving the pub or congregating outside the pub around closing time. I note Ms X raised this matter with officers in 2017 as well as 2018 but I have seen nothing that points to investigation of this matter. It is for officers to satisfy themselves that a statutory nuisance exists but they must firstly investigate.
- Given the stated difficulties officers had with attempting to witness the alleged nuisance first-hand, I find there was unreasonable delay before the Council offered to place noise recording information in Ms X’s home. The Council first offered to install equipment in the winter of 2018/19 but Ms X pointed out this was a down period for the pub and she would be away from her home. But the offer was not made again until the summer of 2019. Although Ms X accepted the offer the equipment was still not installed.
Communication with Ms X
- The Council has already accepted fault in its communication with Ms X. Ms X had to chase officers for replies to her emails and there are notable gaps in the time taken to respond to Ms X whether by case officers or officers who dealt with her complaints. This was fault.
- Where we find fault by a council we must go on to consider the consequential injustice and a remedy for the injustice. To remedy the injustice caused this service recommends that within six months of the date of my final decision, the Council:
- Undertakes unannounced planned visits to the pub on six dates when scheduled events are taking place to assess whether there is a statutory noise nuisance (if the Council is unable to identify six events during the six month period, it will ask this service for a time extension);
- Ensures that officers assess the level of noise nuisance from people when leaving the pub at or after its closing time during those visits on at least two occasions;
- Writes to Ms X after each visit to tell her the details of the visit and the result of the assessment;
- Installs noise monitoring equipment in Ms X’s home during the six month period on two separate occasions to be agreed with Ms X. The equipment should be in place for the Council’s usual operating times.
- There was fault by the Council causing an injustice to Ms X. The complaint has been closed because the Council agreed to remedy the injustice.
Investigator's decision on behalf of the Ombudsman