Summary: The Ombudsman will not investigate how the Council handled a noise nuisance complaint. This is because he is, in part, unlikely to find fault by the Council, or decide the complainant has been caused a personal and significant injustice.

The complaint

1. The complainant, who I refer to as Ms R, has complained about the way the Council handled her noise complaint. She alleges that incorrect advice by the Council led her to complain when she would not have done had the advice been correct. Ms R wants the Council to remove her details and complaint about the noise from all its records as this may affect the future sale of her home.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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’. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe it is unlikely we would find fault or the fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6), as amended).
4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended).

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How I considered this complaint

5. I have reviewed Ms R’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, supporting documents and applicable legislation. Ms R also commented on a draft of my decision and her comments have been considered in reaching a final decision.

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What I found

Background

6. A statutory nuisance is defined by the Environmental Protection Act 1990 and can include noise disturbances. For noise to be a statutory nuisance, it must either unreasonably and substantially interfere with the use or enjoyment of a home or other premise; injure health or be likely to injure health.
7. Councils have a legal duty to investigate noise complaints and where they are satisfied a statutory nuisance exists, they are required to serve an abatement notice, that is, an instruction to cease, or minimise, the disturbance. Whether a statutory nuisance exists is for a professionally qualified Environmental Health Officer to decide following a period of investigation.
8. Under Section 82 of the Environmental Protection Act 1990, a member of the public can also ask a magistrates’ court to decide if a statutory nuisance exists and, if so, decide what action must be taken.

What happened

9. In November 2018, Ms R moved into her property and began to experience problems with noise from her neighbour’s boiler. In January 2020, she contacted the Council for support and advice in dealing with the issue. The Council informed this is something they could look into and investigate and sent the neighbour a letter giving notification of the complaint. It also asked Ms R to keep a diary of the noise to help it determine if there was a statutory nuisance.
10. Ms R says her neighbour told her an engineer had inspected the boiler and confirmed it was legally installed. Ms R also says she spoke to the engineer who told her the Council would not act on a noise complaint if a boiler had been legally installed. Ms R telephoned the Council to check if the engineer’s advice was correct. She says the Council informed her it was correct and so she abandoned her noise complaint. Ms R thereafter complained that she had been given incorrect advice when initially contacting the Council which induced her to make a complaint. The Council responded that it could investigate her noise complaint and uses diary sheets to help determine the extent of any disturbance. It apologised for any misleading advice and offered to arrange a visit by a senior Council officer to discuss what more it could do.
11. Ms R says the officer did not persuade her it was worth pursuing the noise complaint. The Council has not therefore taken any further action to determine if a statutory nuisance exists. Ms R has asked the Council to remove her complaint from its records because this may affect her ability to sell her property.

Assessment

12. Whether a boiler is legally installed is not relevant to whether a statutory nuisance exists. In my view, the Council could have investigated Ms R’s noise complaint had she decided not to pursue it. I recognise that Ms R feels she was initially given incorrect advice by an unqualified officer at the Council in that it could explore her noise complaint. However, all councils can explore noise complaints and have a legal duty to identify whether a nuisance exists following it being brought to its attention. For this reason, I do not find fault with what the Council advised Ms R in the first instance. Further, given there does actually exist a noise problem at Ms R’s property and the Council sought to investigate the matter, I do not consider that she has suffered a personal and significant injustice since investigation of the matter was to her benefit.
13. As regards to the subsequent alleged advice that the Council would not investigate a legally installed boiler, the Council has been unable to confirm if it gave Ms R incorrect advice, but has apologised if it did. It also offered to investigate the noise complaint, but Ms R does not wish it to do this. I cannot be certain what advice the Council gave Ms R, but there is no reason to doubt she believed it would not investigate her concerns about the noise. However, to come to any view on what injustice was caused by any fault, I would need to know if there was a statutory nuisance the Council might have acted on earlier. As Ms R is unwilling to pursue her noise complaint, I cannot come to a view on this. Further, I cannot add to the Council’s own inquiry on this matter since it has already offered to investigate. I therefore do not propose to investigate.
14. With respect to Ms R’s request that the Council remove her details on the noise complaint from its records, I do not know the nature of the Council’s records or the legal position regarding retaining them. However, if Ms R feels the Council holds and processes inaccurate data about her, she may consider contacting Council in the first instance to have this remedied. In the event the Council is unable to assist in this regard, the Information Commissioner acts as the appropriate body to consider data protection concerns.

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Final decision

15. I will not investigate this complaint because I am unlikely to find fault or decide the complainant has been caused a personal and significant injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman