Summary: Mr and Mrs X complain about the Council’s decision to take no action against a noise complaint. They also complain about the Council’s communication and complaint handling. The Ombudsman does not find fault with the Council’s decision to take no further action on the noise complaint. We do find some fault with the Council’s communication. We have recommended the Council apologise.

The complaint

1. Mr and Mrs X complain about:
• The Council’s decision to take no action against a noise complaint. They say their neighbour is operating a business in their property which is causing excessive noise. Mr and Mrs X said the noise causes them distress.
• The Council’s communication and complaint handling. They say the Council did not reply to their questions and enquiries and were slow to communicate with them. They also say the Council made mistakes with their email address which resulted in no communication. They say this caused them trouble and inconvenience.
2. Mr and Mrs X also complain about disrepair issues within their property, such as mould. They also complain the Council’s planning department has not responded to their referral regarding their neighbour operating a business in their premise without permission.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I considered the information provided by Mr and Mrs X.
7. I made enquiries with the Council and considered the information it provided.
8. I sent two draft decisions to Mr and Mrs X and the Council and considered their comments.

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What I found

Legislation and regulations

9. Part 1 of the Housing Act 2004 sets out a system for assessing housing conditions and enforcing housing standards. This is the Housing Health and Safety Rating System (HHSRS).
10. Under the HHSRS, a council carries out inspections of rented housing and identifies whether any specified hazards are present.
11. The HHSRS is used to identify hazards and their likely impact on the health and safety of the occupier, or visitor, in residential accommodation. A hazard is any risk of harm (including temporary harm) to the health or safety of an actual or potential occupier of accommodation that arises from a deficiency in the dwelling. Health includes mental health.
12. Section 4 of the Housing Act 2004 notes that if a local housing authority considers,
• as a result of any matters of which they have become aware in carrying out their duty under section 3, or
• for any other reason,

that it would be appropriate for any residential premises in their district to be inspected with a view to determining whether any category 1 or 2 hazard exists on those premises, the authority must arrange for such an inspection to be carried out.

13. During an inspection, the Council rates any hazards in the property as 'category 1' or 'category 2'. Category 1 hazards are more serious and councils must take action. Councils can choose to act on category 2 hazards.
14. Schedule 1 of the Housing Health and Safety Rating System (England) Regulations 2005 lists 29 ‘matters and circumstances’ that give rise to hazards. One of these hazards is exposure to noise inside a dwelling.

What happened

15. Mr and Mrs X live in a privately rented property. In August 2019, they made a report to the Council of a noise nuisance. A week later, the Council emailed Mr and Mrs X and told them it had cancelled the report because the matter was outside the Council’s authority. The Council said it had referred the matter to their landlord.
16. Mr and Mrs X said they did not hear back from the Council and chased the Council near the end of August 2019. They said the Council then sent them some diary sheets to complete. Mr and Mrs X completed and sent these back to the Council the same day.
17. At the end of August 2019, the Council wrote to Mr and Mrs X and confirmed it would not investigate as the noise described was general living noise. The Council sent its response to an incorrect email address. Mr and Mrs X chased the Council at the end of September 2019. The Council did not respond to this email.
18. Mr and Mrs X made a complaint at the beginning of October 2019 as they had not received any response to their noise reports after returning their completed diary sheets.
19. The Council responded to their complaint and said it had responded to their noise reports twice in August 2019. The Council said Mr and Mrs X had used more than one email address to contact the Council. The Council asked Mr and Mrs X to confirm what email address to resend the responses to.
20. Mr and Mrs X said they had only contacted the Council with one email address. They said this was the email address registered to their Council account. The Council resent the responses and confirmed their email address had been updated in the system.
21. At the beginning of November 2019, Mr and Mrs X asked the Council to escalate their complaint The Council responded to their complaint at stage two in November 2019.
22. In its complaint response, the Council said it did not consider the reported noise a statutory nuisance because it was a soundproofing issue with the flat. The Council said the noise diary provided describes living noises such as footfall, talking, raised voices, and doors closing. The Council said with effective soundproofing in place, they were unlikely to hear most of those noises.
23. The Council also noted it could make an assessment with regards to the lack of soundproofing using the HHSRS. The Council said that from experience, to be deemed a category one hazard, where formal action is taken, there had to be an almost life limiting effect, such as serious illness or mental illness.
24. The Council noted there were issues with several email addresses being held on the Council’s database. The Council said it had removed the additional email addresses.
25. In response to my first draft decision, the Council confirmed it had considered the matter and was satisfied it was highly unlikely it would rate the noise hazard reported as category one.

Analysis

26. The Housing Act 2004 brought in a new system for councils to assess housing conditions. Under the HHSRS, a council carries out inspections of rented housing to identify whether any specified hazards are present and their likely impact on the health and safety of the occupier. This includes the occupier’s mental health.
27. The legislation sets out when the Council has a duty to inspect. In this case, the threshold for a statutory inspection was not met.
28. The Council has demonstrated it considered carrying out an inspection under the HHSRS. The Council decided not to complete an inspection because it felt it was unlikely to rate the noise hazard category 1.
29. As the thresholds for a statutory inspection were not met in this case, it was for the Council to decide whether to inspect Mr and Mrs X’s property under the HHSRS. Therefore, the Council was entitled to decide not to inspect Mr and Mrs X’s property.
30. The Ombudsman cannot question the Council’s decision if it has been made properly. The Council has shown consideration of the HHSRS and has explained its reasons for not completing an inspection. Therefore, I cannot find fault with the decision.
31. With regards to the Council’s communication and complaint handling, the evidence shows the Council did respond to Mr and Mrs X’s initial report in August 2019 within an appropriate timescale.
32. However, it had sent its responses to an incorrect email address which meant Mr and Mrs X did not receive the responses. It is therefore understandable Mr and Mrs X felt the Council had not responded to their reports within an appropriate timescale.
33. While it is appreciated mistakes can happen, it appears the Council did not respond to Mr and Mrs X in September 2019 when they chased the Council for a response. The Council should have done so. If it had, it is likely the Council would have identified it had sent its previous responses to an incorrect email address sooner. The Council’s failure to respond to Mr and Mrs X’s email subsequently continued to prolong the communication issues. This is fault.
34. I consider the fault identified caused Mr and Mrs X an injustice because they were caused trouble and inconvenience at the lack of contact from the Council.
35. When Mr and Mrs X raised a complaint in October 2019, the Council responded within an appropriate timescale. The Council also responded within an appropriate timescale when Mr and Mrs X escalated their complaint in November 2019.

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Agreed action

36. To remedy the injustice caused by the fault identified, the Council has agreed to write to Mr and Mrs X and apologise for not responding in a timely manner to their email in September 2019.
37. The Council should complete the above remedy within four weeks of the final decision.

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Final decision

38. I find no fault with the Council’s decision to take no further action on the noise complaint. I do find fault with the Council’s communication with Mr and Mrs X. The Council accepted my recommendation and I have my investigation.

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Parts of the complaint that I did not investigate

39. I did not investigate Mr and Mrs X’s complaint about the planning department. This is because the Council has not yet had the opportunity to respond.
40. I also did not investigate their complaints about disrepair within the property. This is because Mr and Mrs X rent privately, and their landlord is responsible for disrepair issues.

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Investigator's decision on behalf of the Ombudsman