Summary: Mrs X complained the Council did not take adequate steps to prevent noise from a shared living unit near where she lives. We found fault by the Council resulting in avoidable distress and anxiety to Mrs X. The Council has agreed to make a payment to Mrs X and arrange further consultation to identify ways to reduce the impact to her.

The complaint

1. Mrs X complains the Council has not taken adequate steps to prevent noise from a shared living unit near where she lives. She says the Council has not carried out the actions it previously agreed to undertake.
2. Mrs X says the Council has caused avoidable distress and anxiety to herself and her husband.

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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. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. 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)
7. 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

8. I have exercised discretion in investigating Mrs X’s complaint back to December 2018. The next section of this statement explains my reasons for this.
9. I have spoken to Mrs X and considered the information she provided.
10. I have made enquiries to the Council and have considered the information it provided.
11. Mrs X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Background

12. Councils must investigate complaints about noise that could be a statutory nuisance. The council must decide whether the nuisance substantially interferes with the person’s enjoyment of their property or if it is likely to injure their health. When deciding this the council should consider whether and how an ordinary person would be affected by the noise. If the council decides the noise amounts to a statutory nuisance it should consider enforcement action.
13. It is a defence to enforcement action “to prove that the best practicable means were used to prevent, or to counteract the effects of, the nuisance”. (Environmental Protection Act 1990, section 80 (7)).

Previous complaint

14. Mrs X made a similar complaint to us in 2018. She complained the Council failed to act to prevent noise from the shared living unit near where she lives. We upheld Mrs X’s complaint and the Council agreed a remedy. This included providing an explanation to Mrs X about the action it intended to take.
15. During the investigation of the 2018 complaint, the Council consulted with an acoustics specialist. The specialist produced a report with recommendations for reducing the noise levels and/or minimising the impact of the noise from the shared living unit. The report recommended the Council take the following actions:

• Investigate the feasibility of increasing the height of the existing brick wall between the shared living unit and the nearby houses;
• Investigate the possibility of fitting all doors with soft closing devices, and
• Instal enhanced sound insulation glass and/or acoustic vents where such a measure could be effective.

What happened

16. Mrs X lives close to a shared living unit operated by a company owned by the Council. Mrs X complains she has experienced problems with noise made by some of the residents at the shared living unit. Mrs X says the noise can be caused by some residents banging doors and shouting while being in the outside space. Mrs X complains this can occur during the day and night.
17. Following our investigation in 2018, the Council held a meeting in March 2019 with Mrs X, some of her neighbours, and representatives from the shared living unit’s management. At the meeting, the Council discussed the acoustic specialist’s report. It suggested extending the height of a dividing wall between the unit and the neighbouring houses, in line with one of the report’s recommendations. However, some neighbours said they did not want this as they felt it may affect the light to their homes and gardens. The representative from the shared living unit’s landlord said they would seek advice from a contractor about the best option regarding this and provide an update to the neighbours.
18. Mrs X and her neighbours also discussed the possibility of planting additional trees to improve privacy, and as an alternative to raising the height of the wall. Mrs X asked if the Council could consider replacing her existing fence with trees and a soundproof fence, as the dividing wall stops before it reaches her garden.
19. In September 2019, the Council received a second report from the acoustic specialist. It said it understood the shared living unit had a best practice scheme to deal with noisy or disruptive episodes and that this can vary depending on the individual needs of the resident, and their triggers. It said support workers cannot force residents to remain or go back to their apartments and said attempts to do this can trigger residents to make more noise.
20. The report said some noise reduction may be achieved by increasing the height of the existing brick wall between the unit and the neighbours’ houses. It suggested this may be achieved by fitting an acoustic fence to the top of the wall. The report said this would achieve greater sound reduction at ground floor level and gardens, but less or little reduction at first floor level.
21. The report said the planting of trees would provide little in terms of noise mitigation and said a 10 metre thick planting area would be required to achieve noticeable results. It suggested investigating the possibility of fitting all doors with soft closing mechanisms where no undue side effects would be felt.

Mrs X’s complaint

22. Mrs X complained to the Council in May 2020 about excessive noise from the shared living unit. She also complained the Council had not adhered to what it had agreed at the meeting. Mrs X complained again in June 2020 about the same issue.
23. Mrs X also complained to the manager of the shared living unit in June 2020. She said the ongoing noise issues were causing her severe stress and anxiety. Mrs X complained to the Council again in July 2020.
24. The Council replied in July 2020. It said it had asked for an internal review of the incidents raised. It also explained it was working hard to support the individuals at the shared living unit who had a range of complex needs. The Council acknowledged some noise and disturbance from the unit and asked Mrs X if it could pass her details to Environmental Services to discuss installing sound monitoring equipment.
25. Mrs X complained again in July 2020 about the continuing noise. Management from the shared living unit replied and said it was meeting with the Council to review the situation.
26. The Council provided a final response to Mrs X in August 2020. It said it had instructed a noise consultant to examine the noise levels, and they identified two areas of improvement which were most practicable. These were:

• Installing soft closing door mechanisms to certain doors
• Installing acoustic fence tops on certain fences.

27. The Council said it had completed the installation of the soft closing door mechanisms and had identified it needed planning permission to install the fence tops. It said it had not taken this action because Mrs X’s neighbours had not reached a consensus about this at the meeting in March 2019.
28. The Council said it had suggested installing noise monitoring equipment at Mrs X’s home but said Mrs X had declined this. It said it needed Mrs X to engage with it so that it could assist her. The Council said it could not place something that would impact Mrs X’s neighbours without the consent of all the affected residents and without ascertaining the scope of the noise she was experiencing. It said without this, it did not have evidence to be able to decide whether further action was needed.
29. The Council said it has a legal obligation to meet the needs of the residents at the shared living unit. It acknowledged noise is created by the residents and acknowledged its impact. However, it said it cannot discriminate or allow others to discriminate against people where the source of discrimination arises as a result of their disability. The Council acknowledged the situation was difficult and the rights of various parties must be finely balanced. It asked Mrs X to engage with it to try to resolve the issues.
30. Mrs X remained unhappy with the Council’s response and brought her complaint to us.

Analysis

31. The operator of the shared living unit is wholly owned by the Council and therefore I can consider its actions as if they were the Council’s. I therefore consider the Council is responsible for any noise nuisance and any failure to address the complaints Mrs X has made.
32. Mrs X complains the Council has not carried out the actions it previously agreed to undertake. Mrs X’s previous complaint was concluded in December 2018 and the Council agreed to take action to address the issues raised. I have therefore exercised discretion in investigating Mrs X’s complaint back to December 2018.

What did the Council agree to do?

33. Following the previous investigation, the Council agreed to apologise to Mrs X and make a payment to reflect the time and trouble taken in making repeated complaints. It also agreed to tell Mrs X and us how it had considered the acoustic specialist’s report and what action it intended to take.

Proposal to raise the height of the wall

34. At the meeting in March 2019, the Council proposed raising the height of the wall. However, some of Mrs X’s neighbours were not happy with this proposal. The minutes from the meeting show the Council said it would identify what type of materials could be used to heighten the wall and that it would inform the neighbours once it sought advice from contractors.
35. The evidence shows the Council did not update the neighbours as agreed and did not seek any further consultation with them about this option. The Council says this was because it understood Mrs X would speak to her neighbours about the wall and would inform the landlord if her neighbours unanimously agreed. It acknowledges it would have been helpful to further consult with neighbours to ensure they had a clear picture about the proposal. The Council says it would like to apologise for this and will arrange further consultation with Mrs X’s neighbours to see if their views have changed.
36. It is positive the Council has identified the delay in carrying out this action and is taking steps to arrange further consultation. However, the Council agreed to take this step in March 2019, and I consider the lack of further consultation and the delay in arranging this is evidence of fault.

Planting of trees

37. At the meeting in March 2019, the Council said it would seek advice from its garden team about planting mature trees as a screen. I have seen no evidence of the garden team’s advice but acknowledge the Council says this was obtained verbally. I am however satisfied the Council sought advice about this option from the acoustic specialists, as this is demonstrated in its report.
38. The minutes of the meeting in March 2019 show Mrs X asked the Council to consider the option of additional planting and installation of a soundproof fence in her garden. This was because Mrs X says there are no trees separating her property from the shared living unit. She also says the separating wall between the shared living unit and her neighbours’ properties does not extend to her property.
39. I acknowledge the acoustic specialists’ report (produced in September 2019) concluded additional planting would provide little in terms of noise mitigation. While this option may not achieve the outcome sought by Mrs X, I have seen no evidence the Council explained this to her. Neither have I seen any evidence the Council followed up Mrs X’s request that it consider alternative sound reducing fencing for her garden. I acknowledge the Council may not have identified suitable measures to achieve the outcome Mrs X was seeking. However, the Council’s failure to update her about this, or follow up this request is fault. This is because of the Council’s previous agreement to provide Mrs X with an explanation of the action it intended to take.

Soft door closing mechanisms

40. The Council explored the option of soft door closing mechanisms after the previous complaint was concluded. It said mechanisms would be fitted to the doors identified by the acoustic specialists.
41. The acoustic specialists’ report does not specify which doors should be fitted with the mechanisms. Instead, it says “We would also recommend that the possibility of fitting all doors with soft closing mechanisms is investigated. Where such devices can be installed without undue side effects, this would assist in reducing the noise associated with doors being slammed”.
42. The Council says the landlord has fitted a soft door closing mechanism to one door “in the interests of applying the best practicable means of minimising noise release”. It says it deemed it inappropriate to fit mechanisms to the other doors because of the sensory needs of some of the residents. It says some residents need “to feel the control and release of the door in their hands and for it to make a noise once released…”. It says this action can help soothe some residents and the fitting of soft closing door mechanisms will take this away from them.
43. The acoustic specialists’ report recommended the fitting of mechanisms to doors where this will not cause undue side effects. I am satisfied the Council considered this recommendation and acknowledge the Council’s explanation for why the mechanisms have not been fitted to all doors. Therefore, I do not find fault in the Council’s actions in this aspect of the complaint.
44. However, as the Council fitted a mechanism to just one door and did not take any further steps to improve sound reduction, the Council should have thought about alternative action which could potentially mitigate the noise affecting Mrs X. Had it done so, this approach would have demonstrated the Council’s application of the best practicable means of minimising noise nuisance. As there is no evidence the Council took this action, I have found this to be fault.
45. I acknowledge the Council says it needed Mrs X to engage with it, specifically regarding the installation of sound monitoring equipment. It says it made the offer to install the equipment because Mrs X’s reports of noise did not match the records kept by staff. It also says the sound monitoring equipment would have allowed it to better understand the times of day the noise was occurring to see if alternative staffing arrangements may be beneficial.
46. Mrs X says the sound recording equipment had previously been installed as part of her 2018 complaint. She said she declined the offer to install it again because the findings of the recordings could not be used as evidence. This is because the Council could not issue a noise abatement notice to itself (as owner of the operator of the shared living unit), so there was no point in installing it again. She also says the Council were already aware of the noise issue.
47. I acknowledge Mrs X’s reasons for declining the installation for a second time, particularly when the acoustic specialists’ report shows evidence of the sound levels recorded. In addition, in its final response letter to Mrs X, the Council acknowledged that noise was created by the residents. On this basis, I am satisfied the Council held evidence of the noise nuisance and was therefore in a position to take steps to address it.
48. The Council says it has:

• Installed triple glazing and sound proofing to one of the flats
• Increased 1 to 1 support
• Sourced specialist sensory occupational therapy
• Made staffing changes to allow for a waking night staff member
• Arranged monthly multi-disciplinary team meetings.

49. I acknowledge the steps the Council says it has taken. However, some of these actions were carried out at about the same time of Mrs X’s previous complaint. This investigation is about Mrs X’s subsequent complaints and the actions taken by the Council to address them. I have found fault by the Council because the evidence shows it did not apply the best practicable means of minimising noise nuisance following Mrs X’s subsequent complaints.
50. Having identified fault, I must consider if this caused an injustice to Mrs X. She says the ongoing noise has caused stress, anxiety and frustration to herself and her husband and this has impacted on their mental and physical health. The Council’s final response to Mrs X acknowledges there was an impact to her. Mrs X also says she has spent a lot of time pursuing her complaint.

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Agreed action

51. To address the injustice arising from the fault identified, the Council has agreed to take the following action:

• Provide an apology to Mrs X within one month of the final decision:
• Make a payment of £150 to Mrs X in recognition of the time and trouble taken in pursuing her complaint. This should be made within one month of the final decision;
• Make a further payment of £150 to Mrs X in recognition of the stress and anxiety caused. This should be made within one month of the final decision;
• Arrange further consultation with Mrs X and her neighbours about the proposal to raise the height of the wall. This should take place within two months of the final decision, and
• If agreement is not reached with Mrs X’s neighbours, the Council should carry out further discussion with Mrs X to identify and implement practical measures to attempt to improve sound ingress to her property and garden. The Council should fund the measures agreed with Mrs X. Discussion and implementation of these measures should take place within three months of the final decision.

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Final decision

52. I have found fault by the Council resulting in avoidable anxiety and distress to Mrs X. The Council has agreed to take the above action to remedy the complaint and I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman