• The complaint
• What I have investigated
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs X complains about the Council’s handling of her report of neighbour noise nuisance. She says this affected both her physical and mental health. The Ombudsman has found the Council properly investigated her noise complaint before deciding there was insufficient evidence to take formal enforcement action. However, the Ombudsman has found some fault because the Council did not refer Mrs X to other agencies when it said it would. To remedy this, the Council has agreed to apologise and make these referrals.

The complaint

1. Mrs X complains about the Council’s failure to take enforcement action to stop noise nuisance caused by her neighbour and the lack of support she has been given generally. She says her neighbour has deliberately targeted her because of her disability. This has caused Mrs X considerable distress.

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What I have investigated

2. The restriction outlined in paragraph four (below) applies to this complaint because Mrs X has referred to events that took place over a year ago. The Ombudsman has discretion and can disapply this rule if there are good reasons. I have decided not to exercise discretion to investigate these earlier events because Mrs X was aware of the problem in February 2017 and did not lodge a formal complaint with the Council then. I consider it was reasonable for Mrs X to have done so at that time.
3. For this reason, I have investigated events from February 2019 onwards.

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The Ombudsman’s role and powers

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. 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)
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

7. As part of my investigation I have:

• considered the complaint and documents provided by Mrs X;
• made enquiries of the Council and considered its response;
• considered the relevant law and the Council’s policy;
• spoken to Mrs X; and
• sent a draft version of this decision to both parties and invited comments on it. I have taken the comments received into consideration.

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What I found

The relevant law and policy

8. Section 17 of the Crime and Disorder Act 1998 places a duty on councils to tackle anti-social behaviour (“ASB”). They can discharge this duty in a variety of ways and may use powers available to them under the Environmental Protection Act 1990 or the Anti-Social Behaviour, Crime and Policing Act 2014.
9. The Environmental Protection Act 1990 allows councils to take formal enforcement action if a ‘statutory nuisance’ is taking place. For a noise to count as a statutory nuisance it must unreasonably and substantially interfere with the use or enjoyment of a home or other premises, or injure health or be likely to injure health.

The Council’s ASB and noise nuisance policy

10. When the Council receives a report of ASB it assesses and passes it to the appropriate service to deal with. Where the complaint is about noise nuisance the Council sends a noise nuisance information pack which includes a noise diary with advice on how to complete and return it. If the returned diaries show persistent problems the Council will carry out an investigation.
11. The Council allocates the case to a case officer who meets with the reporting person and investigates to determine facts. And find out whether there is evidence to support the allegations made. The Council may decide to use Noise Monitoring Equipment (NME) to evidence the noise nuisance. The Council will close the case if the investigation finds insufficient evidence of a noise nuisance.
12. As part of the investigation, the Council must carry out a vulnerability assessment in respect of the victim and may offer a referral to the Victim Support charity.
13. A “disability hate incident” is an incident perceived by the victim to be motivated by the accused’s prejudice against them because of their disability. Reports about ASB that may be a hate incident/crime are given additional priority.

Events leading to the complaint

14. Mrs X first complained to the Council in 2017 about excessive noise from her neighbour’s property. The Council decided there was insufficient evidence to take the case any further. Her case was closed.
15. Mrs X says the problem persisted and she made a further report about excessive noise to the Council in February 2019. She described the noise as “horrendous” and consisted of children screaming, loud music, a football being kicked against internal walls and a revving car engine. Shortly afterwards, dog barking became a problem too.
16. Mrs X is disabled. She says this noise has affected bother her physical and mental health.
17. An officer (Officer J) from the Council’s ASB team went to see Mrs X to discuss the problem. During the interview, the Officer J’s notes record that victim support was discussed. He agreed to make a referral to this service.
18. For a month Mrs X kept a written record of the incidents of noise nuisance. During this time she recorded 25 incidents that occurred at various times during the day and evening. She also made reports to the Council’s out of hours noise team.
19. Officer J then contacted Mrs X’s neighbour who strongly denied the allegations. Because of this outcome, mediation was discussed, and Mrs X said she would be interested in pursuing this.
20. Officer J told Mrs X it could only proceed with its investigation if she agreed to use noise monitoring equipment (NME).
21. However, before it was installed, her neighbour told Mrs X that they would be quiet from tomorrow as they knew NME was being installed. Mrs X assumed from this that her neighbour had been “tipped off” by a Council employee, possibly another neighbour. She says this happened during the previous investigation in 2017. Mrs X raised her concerns with the Council about this. The Council advised Mrs X that this was not possible, and no one had shared confidential information.
22. Frustrated by this, Mrs X reported the matter to the police as a disability hate crime. A police officer discussed this with Mrs X but decided it was not a hate crime. She was advised in writing by the police that she could report this online. Mrs X was referred by the police back to the Council’s ASB department.
23. In response, the Council’s ASB Chief Officer replied personally to Mrs X. He sought to reassure Mrs X that the correct procedures were followed in respect of surveillance and her case generally.
24. Mrs X agreed to NME being installed.
25. The Council analysed the recordings made by Mrs X, but the files were corrupted so no evidence was available.
26. The Council offered to reinstall the equipment. Mrs X declined this offer but later changed her mind due to a recurrence of excessive noise, predominantly dog barking.
27. The NME was reinstalled. But on analysis by the Council, the equipment had failed to record at the times Mrs X had indicted it had been activated by her. Despite this, the Council considered the other evidence provided but determined in was insufficient to constitute a statutory noise nuisance and enforcement action.
28. Mrs X remained concerned about someone “tipping off” her neighbour. She said that whenever the NME was installed, the noise reduced. She said this was too much of a coincidence.
29. In July 2019, Mrs X complained again about excessive nose, particularly the dog barking.
30. She was asked again to keep a written log of incidents. Officer J carried out what he called “pro-active monitoring”. In practice this meant he parked his car across the road from the neighbours’ house for approximately 30 minutes and listened for any noise. He did not hear any barking.
31. The Council told Mrs X that if the problem persisted, she should continue to keep a written record.
32. In October 2019, Officer J agreed to carry out further “pro-active monitoring”. He carried out a further five 30 minute surveillance visits but only heard a dog barking on one occasion and the officer could not be certain it came from Mrs X’s neighbours’ property.
33. In November 2019, the Council wrote to Mrs X and advised her that, having considered all of the available evidence, the assessment was that it was not a potential statutory nuisance situation. The Council closed the case but advised Mrs X that it would reopen the case if new reports were received from her.
34. Mrs X brought her complaint to the Ombudsman because she says the Council has not taken her complaint seriously. In particular she says:

• The NME was faulty as it has failed to record excessive noise
• She has been targeted by her neighbor because she is disabled. She should have been referred to the Hate Crime Agency.
• The service she received was poor. She had to chase officers for a reply rather than her being contacted by them.
• The out of hours service failed to respond to her requests for assistance.

Analysis

35. The Council responded promptly to Mrs X’s initial report about noise. It carried out a home visit within a reasonable timeframe and Officer J’s case notes record that he had sought to address Mrs X’s concerns about the neighbour being “tipped off”. He also discussed alternative support and said he would ask a support officer to call her and make a referral to Victim Support.
36. Mrs X says the Council did not send her a noise nuisance information pack in line with its policy (paragraph 10 above). While this should have happened, I am satisfied Mrs X was not affected by this as she was provided with sufficient information during the home visit.
37. The case records do not say if this happened or not. The case records include a Victim Support referral form but it is only half completed and so I cannot be certain what happened here.
38. The Officer J’s case notes also record that on two occasions he offered to make a referral to the mediation service. Mrs X said she wanted to pursue this. Again, there are no record showing what happened about this.
39. Mrs X says she has not received any support and the Council did not make the referrals it said it would. In the absence of any evidence in the case notes that such referrals were made, I have decided, on balance, that they were not made. This is fault.
40. As time went on, Mrs X clearly became more distressed by the ongoing situation. In her frustration she contacted the police and made reference to it being a hate crime because of her disability. The police referred her back to the Council and advised her to make an online report if she wanted to report a crime of this type. In response to my enquiries about this, the Council said Mrs X did not indicate that she perceived it as a hate crime.
41. The case records support this. The only reference to a hate crime is contained within the police complaint response provided by Mrs X. There is no record of this being passed onto the Council or mentioned by Mrs X to the Council. The Council carried out an initial vulnerability assessment in respect of Mrs X which was the correct approach. Just because Mrs X is disabled does not mean the noise nuisance has to be treated as a hate crime unless Mrs X reported it as such. I understand Mrs X may have had an expectation that this information would be passed on to the Council by the police but there is no evidence this happened. In the absence of this, there was no fault by the Council.
42. The Council dealt with it as a noise nuisance complaint and investigated whether the noise being made by Mrs X’s neighbour was a statutory nuisance. This approach was in line with its policy. As part of this investigation it installed NME twice. But on both occasions the NME failed to record. Mrs X says the equipment was not fit for purpose and she should have been allowed to submit recordings she had made on her mobile phone.
43. The Council’s policy does not allow for mobile phone recordings. It is for the Council to determine what type of evidence is needed for action to be taken. And whilst the NME did not record, there is no evidence that it was faulty. The records show a council officer set it up properly and gave Mrs X instructions about how to use it. While I acknowledge it is frustrating for Mrs X that it did not record the noise, I am unable to say this due to fault by the Council.
44. To the Council’s credit when the NME did not record anything, it carried out surveillance instead. But this did not provide any evidence either.
45. Mrs X says this is because her neighbours were aware of what was going on and the dog was encouraged to bark at particular times and kept quiet at others.
46. The Ombudsman would have no way of being able to establish whether this was correct or not.
47. The Council has denied any of its officers would have “tipped off” Mrs X’s neighbour as claimed by Mrs X. While she has provided the Ombudsman with the name of another neighbour who works for the Council this does not prove he was involved in any way. In the absence of any additional evidence to corroborate what Mrs X says, the Ombudsman will not make a finding on this aspect of the complaint.
48. Mrs X also complained about inadequate service offered by the “Out of Hours Noise Service”. She expected officers to come out and witness the noise she was reporting which did not happen. I am unable to find fault here because there is no obligation on the Council to do so. It is for the Council to decide how to deal with out of hours reports. In its complaint response to Mrs X, the Council said six calls to the out of hours team had been recorded and formed part of her case history. Mrs X says she made more calls and has proof of this. I accept there may be some discrepancy here but I am satisfied the Council was aware of enough out of hours reports to make its decision about how to proceed
49. The Council concluded it did not have sufficient evidence to take formal action in the courts, which is the main outcome that Mrs X desires. The information I have seen indicates it properly investigated before reaching its decision. I would not expect it to take legal action if there was insufficient evidence to do so. I have not found fault in the quality of service offered to Mrs X generally. While there may have been occasions when she had to chase the Council for a reply, generally the Council responded quickly and appropriately to Mrs X.
50. Despite the findings of the Council’s investigations, it is clear the circumstances surrounding this complaint are still causing Mrs X considerable distress. I understand the noise she is experiencing may be causing this, however legally the Council is not required to take someone’s personal circumstances and conditions into account when deciding whether a statutory nuisance is taking place. I appreciate she may be more sensitive than others to the noise being created, but this does not mean the Council should pursue legal action to address the matter if the evidence does not support such action.
51. I understand Mrs X strongly disagrees with the Council’s decision there is no evidence of a statutory noise nuisance. But the decision is a matter of the officers’ professional judgement. The Ombudsman cannot question the merits of the decision itself without evidence of fault in the way it was made.
52. While I have found some fault by its failure to make appropriate referrals, I am satisfied this did not affect the overall decision about noise nuisance. This fault can be remedied by the Council taking the action set out below.

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Agreed action

53. Within one month from the date of my final decision, the Council has agreed to take the following action:
    • 1. Apologise in writing to Mrs X for its failure to make referrals that it said it would.
      2. If requested by Mrs X, make a referral to Victim Support and to the mediation service.

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Final decision

54. I have found some fault in the way the Council handled Mrs X’s report of neighbour noise nuisance. To remedy this, the Council has agreed to apologise to her and make a referral to a mediation service.

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Investigator's decision on behalf of the Ombudsman

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