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Wigan Metropolitan Borough Council (19 003 835)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 20 Mar 2020

The Ombudsman's final decision:

Summary: The Ombudsman upholds Miss X’s complaint about the way the Council responded to her concerns about noise and anti-social behaviour from her neighbours. The Council did take some action against the neighbours, but it also identified other actions to address the problem that it did not take. There is no explanation for why the Council did not take these other steps. This created uncertainty for Miss X about whether these measures would have improved the situation. The Council will apologise and make a payment to Miss X to recognise this. It will also advise Miss X of any changes it has made to the service since her complaint.

The complaint

  1. Miss X complains the Council failed to act in response to her complaints about noise and anti-social behaviour from her neighbours. She says the noise kept her family awake at night. She says the lack of action by the Council caused her undue stress, and eventually led to the family having to move. Miss X would like the Council to improve its response to anti-social behaviour and noise nuisance and provide a financial remedy for the injustice it caused.

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What I have investigated

  1. I have investigated Miss X’s complaint about how the Council dealt with her complaints about noise nuisance and anti-social behaviour from her neighbours. I have not investigated the handling of the anti-social behaviour case reviews which were carried out. The final section of this statement contains my reasons for this.

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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 cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)
  4. 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 have considered the complaint made by Miss X and the documents she provided.
  2. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
  3. I gave Miss X and the Council an opportunity to comment on my draft decision and I considered their responses.

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What I found

Legislative background

  1. The Environmental Protection Act 1990 sets out the law on statutory nuisance.
  2. Councils must investigate complaints about noise that could be a statutory nuisance. For a noise to be a statutory nuisance, it must:
    • Unreasonably or substantially interfere with the use of enjoyment of a home or other premises; or
    • Injure health or be likely to injure health.
  3. Where a person complains to a council about a possible statutory nuisance, it must take reasonably practicable steps to investigate the complaint.
  4. If an officer decides 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.
  5. Councils can take informal action if the noise complained about is causing a nuisance but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
  6. Members of the public can bring their case to the Magistrates’ Court and ask it to serve an abatement notice.
  7. Councils also have a duty to act to combat anti-social behaviour. The Anti-Social Behaviour, Crime and Policing Act 2014 gave councils new powers to address anti-social behaviour. These include civil injunctions and community protection notices.
  8. The statutory guidance which accompanies the Act sets out some early and informal interventions which may be used to address anti-social behaviour. This includes verbal and written warnings, mediation and acceptable behaviour contracts.
  9. The Act also allows victims of persistent anti-social behaviour to demand a formal review to decide whether further action can be taken. This is sometimes known as the ‘Community Trigger’. The Community Safety Partnership oversees this review and is not within the Ombudsman’s jurisdiction.

Council policies

  1. The Council’s noise and nuisance toolkit says it will ask complainants to complete log sheets keeping a written record of the problem. If the information collected suggests there may be a problem which could be a statutory nuisance, the Council will carry out further investigation on site. The toolkit says an officer will visit to assess the problem on site and the timing of the visits will be guided by the information recorded on the log sheets. The Council may carry out several visits.
  2. The toolkit advises that if the problem is not considered a statutory nuisance, complainants have the power to take independent action through the Magistrates’ Court. It provides further information on how to do this.
  3. The Council’s anti-social behaviour procedure sets out how the Council will investigate concerns. It says the complainant may be asked to complete incident forms to evidence the nature, frequency, timing and effect of the behaviour. The Council will usually contact the alleged perpetrator to discuss the allegations.
  4. The procedure sets out some of the actions officers may take to address anti-social behaviour. These mirror the suggestions in the statutory guidance. The procedure also sets out the threshold for carrying out an anti-social behaviour case review.

What happened

  1. This chronology includes key events in this case and is not intended to be exhaustive.
  2. Miss X began reporting concerns about her neighbours to the Council in January 2019. She said her neighbours were making constant noise including banging doors, raised voices and large gatherings of people outside the property. She said the noise was disturbing her young baby.
  3. The Council asked her to complete a noise diary. It agreed to install noise monitoring equipment for a weekend. It also gave the neighbours a letter warning them about the noise.
  4. Miss X became frustrated with the time it was taking the Council to review the noise monitoring recordings. An officer apologised and advised her that if she was unhappy with the response so far, she could take her own action through the Magistrates’ Court. The Council contacted the neighbours’ landlord to make them aware of the concerns about noise.
  5. The Council reviewed the noise recordings and decided the noise on the recordings did not meet the criteria for a statutory nuisance. Officers noted it was possible the only way to get a true reflection of the noise would be for an officer to witness it.
  6. At the beginning of March, Miss X asked the Council to carry out an anti-social behaviour case review. An officer contacted her and suggested reinstalling the noise monitoring equipment in a different location and for a longer period. The officer asked Miss X if she was getting any support as she was upset and had described herself as struggling. Miss X declined any further support.
  7. The Council reinstalled the noise monitoring equipment for two weeks and reviewed the recordings the day after it removed it.
  8. An officer contacted Miss X in early April and said the Council could not show there was a noise nuisance. The officer offered to send Miss X the evidence the Council had if she wanted to pursue the matter privately.
  9. The officer wrote to Miss X on the same day to say the Council would not be carrying out an anti-social behaviour case review. The officer reminded Miss X she could pursue the noise nuisance matter privately and offered to refer the family to Victim Support to provide further advice. The Council would continue to work with other services if it received further reports and would reinvestigate the noise complaint and take appropriate enforcement action if the situation changed.
  10. Miss X complained to the Council and a manager visited her at home. The Council responded to her complaint at the end of April. It said:
    • The Council should have opened an anti-social behaviour case review.
    • The threshold for statutory noise nuisance had not been met.
    • Officers had not kept in regular contact with Miss X and she had not met the officer managing the case, which was unacceptable.
  11. The Council said it would speak to her neighbours about gathering in large groups outside her home. It also said it would speak to the landlord again, and carry out a letter-drop to see if other residents were having similar issues. The letter-drop took place the following week. Miss X escalated her complaint to the next stage of the Council’s procedure and received a similar response.
  12. The Council spoke to the neighbouring landlord and agreed to carry out a joint visit to the neighbours. The Council visited and gave the neighbours advice about minimising the noise. The Council’s records note the officer who visited had “no doubt that they have been a nuisance.”
  13. By the end of May, Miss X said the noise problem was recurring more often. The Council issued a Community Protection Notice warning. Miss X says the neighbours breached the conditions in the warning letter within days but there was no follow up by the Council.
  14. Problems continued. Miss X suggested a meeting between her and her neighbours, their landlord and the Council to find a solution. She also sought legal advice in mid-June but decided against taking the matter to Court herself due to the cost and added stress this would cause her and her family. The Council asked the landlord about a meeting, but the landlord declined.
  15. The Council considered pursuing an anti-social behaviour injunction but decided there was not enough evidence to be successful.
  16. The Council offered to install noise monitoring equipment for a third time. After a week, the Council visited to collect the equipment and found it was faulty. It reinstalled the equipment a week later. The analysis of the recordings did not highlight any concerns about statutory nuisance or anti-social behaviour.
  17. The Council met with Miss X at the end of July to set out its legal position and explain it would not be taking enforcement action. It invited Miss X to tell the Council if the situation escalated.
  18. There is evidence of a discussion between officers at the beginning of August about inviting the neighbours to the Council’s offices to give them a final warning and issue an acceptable behaviour contract. However, three weeks later an officer told Miss X the Council could not take further action.
  19. Miss X continued to send evidence of anti-social behaviour to the Council. She and her family moved out of the property in mid-September.

Analysis

  1. The Council did take some action in response to Miss X’s reports of noise nuisance and anti-social behaviour. This included installing noise monitoring equipment, canvassing other residents, visiting the alleged perpetrators and sending them warning letters. There is evidence the Council liaised with other agencies including the police and the neighbours’ landlord. It also advised Miss X of her right to pursue the matter privately.
  2. The Council reviewed the noise monitoring recordings and decided there was no evidence of statutory nuisance. This is a decision the Council is entitled to make. I have not seen any evidence of fault in the Council’s analysis of the recordings. Therefore, I cannot question the conclusion officers came to.
  3. However, early on the Council recognised the only way to assess the noise properly might be for an officer to witness it first-hand. The Council was aware from the noise diaries the concerns about noise mainly occurred in the evening. In line with its noise and nuisance toolkit, it should have arranged to visit at a suitable time to witness the noise. There is no evidence the Council arranged for this to happen and this was fault.
  4. The Council admitted in its response to Miss X’s complaint in April that it was unacceptable for an officer not to have met with her. There is no evidence of any face-to-face contact between Miss X and the officer following the complaint investigation. This was fault.
  5. The Council spoke to the neighbours’ landlord about a mediation meeting but there is no evidence it spoke directly to the neighbours. While there is no guarantee the neighbours would have attended such a meeting, this was a missed opportunity to try to address the continuing noise issue in an informal way. Not doing so was fault.
  6. It is unclear why the Council did not follow up on the Community Protection Notice warning or carry out the actions described in paragraph 41. Officers can use their professional judgement when deciding what action to take in response to anti-social behaviour. But the Council should document the reasons for any decisions it makes and explain its decisions to complainants. The lack of explanation is fault.
  7. I understand Miss X was upset that officers asked her if she needed any emotional support. Miss X felt officers were insinuating she was exaggerating or imagining the noise. I have not seen any evidence officers felt this way. I accept the Council’s explanation the offers were made in good faith.
  8. The Council has already accepted the original decision not to trigger an anti-social behaviour case review was flawed. Further investigation into this matter is unlikely to add substantially to this finding. The Council arranged for two reviews to be carried out in May and again in July. As these reviews are part of a multi-agency process, I cannot investigate their conduct.
  9. It is not possible for me to say that any measure the Council took would have improved the situation with Miss X’s neighbours. The neighbours are ultimately responsible for their behaviour. Despite brief periods where the noise improved, Miss X continued to report noise and anti-social behaviour even after the Council took some action. However, the faults identified do create uncertainty for Miss X about whether it would have resolved the problem if the Council had taken the actions identified. This contributed to Miss X’s distress and frustration.

Agreed action

  1. I have considered the Ombudsman’s Guidance on Remedies. We aim to put the person who has suffered an injustice back in the position they would have been in, but for the fault. Where that is not possible, we suggest a financial sum instead to recognise the injustice. This is not compensation. Compensation is a matter for a court and the sums awarded are on a different basis.
  2. Within four weeks of the final decision, the Council will:
    • Apologise to Miss X and her family and pay £300 to remedy the injustice caused by the faults identified in this investigation.
    • Remind officers investigating noise nuisance and anti-social behaviour complaints that any decisions about action to be taken or not taken should be recorded and explained to the resident raising concerns.
    • Write to Miss X to outline the changes the Council has made to the noise nuisance and anti-social behaviour service in the past 12 months, including any improvements in staffing levels. The Council should also confirm when the new anti-social behaviour policy and procedure will be in place and available to residents.

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Final decision

  1. I uphold this complaint. Miss X was caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

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Parts of the complaint that I did not investigate

  1. I have not investigated the two anti-social behaviour case reviews which were carried out. This function is overseen by regional bodies made up of several different agencies. As stated in paragraph 5, the Ombudsman cannot investigate a complaint where the Council is not responsible for the issue being raised.

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Investigator's decision on behalf of the Ombudsman

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