Summary: Mrs X complained about the way the Council dealt with her complaints of noise nuisance from her neighbours. The Council was at fault. It failed to record whether the noise was a statutory noise nuisance and failed to clearly communicate with Mrs X about what action its Environmental Health Team would or could take. The Council has agreed to apologise to Mrs X and to make a payment to acknowledge the frustration and uncertainty this caused. It has also agreed to review the way it communicates with complainants and to offer to reinstall noise monitoring equipment.

The complaint

1. Mrs X complained about the way the Council has dealt with her complaints of noise nuisance from her neighbours. She says this has caused her distress and has made her medical conditions worse.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, 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 have considered the information provided by Mrs X and have discussed the complaint with her on the telephone. I have considered the Council’s response to my enquiries and have discussed the complaint with a Council officer.
7. I gave Mrs X and the Council the opportunity to comment on this draft decision. I considered any comments I received in reaching a final decision.

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What I found

8. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
9. Typical things which may be a statutory nuisance include:
• noise from premises or vehicles, equipment or machinery in the street
• smoke from premises
• smells from industry, trade or business premises
• artificial light from premises
• insect infestations from industrial, trade or business premises
• accumulation of deposits on premises
10. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and/or
• injure health or be likely to injure health.
11. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
12. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
13. Councils can decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
14. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82.
15. Councils, the police and registered providers of social housing have the power to issue Community Protection Notices (CPN) to prevent anti-social behaviour which is persistent and having a negative effect on the community's quality of life, and which they decide is unreasonable. There is no restriction on the type of behaviour a CPN can deal with. CPNs require the behaviour to stop and, where appropriate, require the recipient to take reasonable steps to ensure it is not repeated. Failure to comply is an offence and may result in a fine or a fixed penalty notice.
16. Councils must issue a written warning in advance of the CPN. It is for the person issuing the written warning to decide how long is appropriate before serving a CPN. A CPN can be appealed in the Magistrates' Court within 21 days by the recipient if they disagree with the council’s decision.
17. A council may issue a CPN while it is investigating whether the behaviour is a statutory nuisance. Issue of a CPN does not affect the council’s obligation to serve an abatement notice under Part 3 of the Environmental Protection Act 1990, where the relevant test is met.
18. We have published guidance ‘Principles of Good Administrative Practice’, setting out a benchmark of the standards we expect when we investigate the actions of councils. These include being service-user focused by informing service users what they can expect and what the organisation expects of them; and being open and accountable by stating the criteria for decision making and giving reasons for decisions along with keeping proper and appropriate records.

What happened

19. The Council’s housing stock is managed by Rykneld Homes, an arm’s-length management organisation (ALMO). It is a not-for-profit company responsible for the management, maintenance and improvement of the Council’s housing stock.
20. In April 2019 Mrs X complained to the ALMO about noise caused by loud drumming from her neighbours’ property. Mrs X is a homeowner. Her neighbour is a tenant of the ALMO.
21. The ALMO asked the Council’s Environmental Health (EH) Team to install noise monitoring equipment. An EH officer visited Mrs X in May 2019 but did not witness any noise. Later in May they installed noise monitoring equipment in Mrs X’s property. Mrs X also supplied diary sheets she had completed.
22. In early June an EH Officer analysed the noise monitoring data. Following this, the EH Officer emailed a record of the noise monitoring to the ALMO. They noted ‘There is sufficient evidence there to serve a Community Protection Warning Letter, if you are in agreement please could you forward me a copy of the CPWL and I will be able to install the meter to witness a possible breach’. The EH officer also spoke to Mrs X to advise her of this. Mrs X says the officer told her that she no longer needed to complete diaries. Mrs X says the EH officer told her when the neighbour received the CPN warning letter things would stop. They said a failure to comply with the conditions in the letter could lead to fines, then prosecution then eviction.
23. A week later the EH Officer contacted the ALMO to ask what was happening and whether it had served the CPN warning letter. The ALMO replied in July 2019 and said they had not served the notice as they wished to speak with the occupants first. They advised the EH Team the situation had improved and no noise nuisance had occurred in the last couple of weeks. They had offered mediation but Mrs X did not wish to participate. Mrs X says the situation had not improved and she refused mediation because of her health issues.
24. Mrs X continued to correspond with the ALMO, sending information about the impact on her health and to raise continued concerns about the noise. Shortly after this the EH officer left the Council.
25. In late August Mrs X contacted the EH Team as she was concerned nothing was happening with her noise complaint. She was advised to speak to the ALMO. The EH Team’s records show in September 2019 an officer found a letter in the EH cabinet sent by Mrs X in August 2019 with a copy letter she had sent to the ALMO. The officer added it to the system and passed it to an EH officer for consideration. In October 2019 it found another letter sent by Mrs X in September 2019 with a letter from her Doctors setting out the impact the noise was having on her health. It added it to the system.
26. The Citizens Advice Bureau (CAB) contacted the Council in September 2019 to request an investigation into how it had handled Mrs X’s noise complaint.
27. In November 2019 Mrs X telephoned the EH Team as the noise was ongoing and she wanted to know who was following it up. The EH Team emailed the ALMO to report it had received two distressed calls from Mrs X who was unsure what was happening with her case. It asked the ALMO to update Mrs X.
28. The Council wrote to the CAB to advise that the ALMO was leading on the case as the alleged perpetrators were ALMO tenants and so it should contact them. It advised it had installed noise monitoring to support investigations and to provide evidence of the type of noise causing the problem. It wrote ‘There is no information to suggest that the Environmental Health officer said the noise was a statutory nuisance’. The ALMO also responded to the CAB. It advised that it had completed an equality impact assessment and after considering this and Mrs X’s complaints it concluded it was not proportionate or reasonable to carry out enforcement action when other remedies were available. It said the alleged perpetrators had carried out reasonable adjustments by reducing the frequency and moving the equipment to elsewhere in the property. It referred again to the offer of mediation.
29. In March 2020 Mrs X telephoned the EH Team to advise the noise was as bad as ever and making her ill. The EH Team told Mrs X to contact the ALMO and to submit a complaint to the ALMO. It also emailed the ALMO to advise it of the contact. The ALMO replied that it received no complaints from Mrs X from November 2019 until early March 2020. It said Mrs X had agreed to mediation in December 2019 but cancelled this before it was arranged. Mrs X complained again to the ALMO in April 2020 and it responded in May 2020. Mrs X also wrote to the Council in April and August 2020 asking why it had taken no further action regarding the noise nuisance. Mrs X reported she had installed her own sound proofing but the noise was ongoing.
30. The Council sent its final response to Mrs X in October 2020. It referred to the noise monitoring and said ‘Environmental Health did not consider that a statutory nuisance existed and on that basis no abatement notice could be served. This information was shared with [the ALMO] however they do not have powers to issue an abatement notice, but they will consider the outcome of the noise monitoring as part of their investigation into your complaint’. It noted the noise complaint was still being dealt with by the ALMO. It said that having determined there is no evidence of nuisance, Environmental Health was not in a position to help Mrs X due to the nature of the tenure of the property concerned.
31. Mrs X contacted us to complain about the lack of action by the Council and ALMO.
32. In response to my enquiries the Council said sound proofing had been installed at the neighbouring property in late November 2020.

Findings

33. We cannot investigate Mrs B’s complaint about the action taken by the ALMO which manages the home of Mrs X’s neighbours on behalf of the Council. That is because we do not have powers to investigate complaints about the Council’s management of its social housing. We can, however, consider complaints about the Council’s EH Team.
34. Mrs X’s complaints were dealt with by the ALMO as anti-social behaviour. I cannot look at its role, the actions it took or its involvement in trying to resolve Mrs X’s complaints. However, the Council’s EH Team carried out noise monitoring as part of that process. As a result of the noise monitoring, it recommended the ALMO serve a community protection warning letter and advised Mrs X of this, including the consequences if the letter was not complied with. This led Mrs X to believe this would happen and that action would be taken. The ALMO decided not to issue the warning letter and I cannot investigate its actions. Although the EH Team emailed the ALMO requesting an update on the action taken, there is no evidence it followed this up or considered whether there was any further action it could or should take. This is fault. The Council says further action was taken, involving senior managers, to try and resolve Mrs X’s concerns. However, it acknowledges there are no written records of this.
35. The EH Team has responsibility for dealing with statutory noise nuisances. If it found a statutory noise nuisance, it had a duty to serve a noise abatement notice. The EH officer considered there was sufficient evidence for a community protection warning letter to be served and advised Mrs X of this. However, the EH Team did not clearly define its limits to Mrs X and left her with an expectation that action would be taken to resolve the noise. There is no evidence the EH Team advised Mrs X at the time of whether or not a statutory noise nuisance existed. In its later responses to Mrs X the Council said there was ‘no evidence to suggest’ the EH officer said the noise was a statutory nuisance. However, there is no record in any of the Council’s contemporaneous records of any decision by the EH officer on whether or not the noise was a statutory nuisance. This is fault and is not in line with our principles of good administrative practice.
36. As set out at paragraph 12 above, it is for the EH officer to decide, using their professional judgement, whether a noise is a statutory nuisance. However, the failure to properly document the officer’s decision-making leaves Mrs X with a sense of uncertainty over whether the Council properly considered the evidence and what the EH Officer’s view was.
37. The EH Team then failed to acknowledge or respond to letters Mrs X sent to it in August and September 2019. It did not follow these up or refer Mrs X to the ALMO. This is fault. The EH Team should have recorded and responded to Mrs X, even if it was to just confirm the ALMO was dealing with Mrs X’s complaints about the noise.
38. I cannot say, what, if any, additional action the EH Team should or would have taken. However, had the EH Team communicated more effectively with Mrs X sooner, she may have decided earlier to take her own private action against her neighbour under the Environmental Protection Act.

Agreed action

39. Within one month of the final decision on this complaint the Council has agreed to apologise to Mrs X and pay her £250 to acknowledge the frustration and uncertainty its poor communication caused her.
40. Within two months of the final decision the Council has agreed to:
• offer to reinstate noise monitoring equipment at Mrs X’s property. It should then assess whether or not the noise is a statutory nuisance and advise her of this and the action it proposes to take.
• review how it communicates with complainants to ensure it records and responds to letters and is clear about the action it is proposing to take around whether or not noise is a statutory nuisance.

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Final decision

41. I have completed my investigation. There was evidence of fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman