Summary: There was fault in the Council’s communication when responding to complaints about late night noise and arranging the installation of a noise monitor and the use of a Noise App. The Council also failed to respond to an official complaint within its timescales, for which it has apologised. The pub complained about has now closed so no further monitoring or financial remedy is appropriate in this case.

The complaint

1. The complainant, who I shall call Ms X, complains that during its investigation of her noise complaint from April 2019 onwards the Council:
• delayed installing noise monitoring equipment.
• failed to adequately respond to her complaints about late night noise to the out of hours monitoring service.
• did not keep her updated.
• did not review her use of a noise App on her phone.
2. Ms X also complains the Council did not respond to her official complaint within its timescales and about the Council’s response to her complaint about Temporary Event Notices (TEN’s).

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What I have investigated

3. I have investigated Ms X’s complaints about the Council’s investigation of her noise complaint since April 2019 and its response to her official complaint. The final section of this statement contains my reason(s) for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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 read the papers put in by Ms X and discussed the complaint with her.
7. I considered the Council’s comments about the complaint and any supporting documents it provided.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background

9. Ms X complained to the Ombudsman in April 2019, about the Council’s response to her complaints about noise. We investigated her complaints from 2017 until April 2019.
10. Investigation 19 000 112 found fault by the Council because it disregarded noise from people leaving the pub when it served a noise abatement notice and there was unreasonable delay in its investigations. There were also failings in its communication with Ms X. The Council agreed to remedy the injustice to Ms X by undertaking a period of monitoring the pub and paying £600 to reflect the distress she suffered. This decision was made by the Ombudsman in February 2020. The pub Ms X complained about closed for most of 2020 due to COVID-19 so the monitoring did not happen. The remedy was not complete but satisfied in February 2021.
11. Ms X put in a new complaint to the Ombudsman. She complained there were further delays by the Council in investigating her noise complaint from April 2019, it had not provided noise monitoring equipment when she asked for it or when it said it would. Ms X complained the Council did not keep her updated, ignored her out of hours reports and information she provided. Ms X says this has caused her distress.
12. Ms X made an official complaint to the Council and it responded in November 2019. The Council upheld part of the complaint. It said that ‘it believed there have been a number of failings regarding assurances made to you about the handling of your case, in particular around objections to future temporary entertainment licences (TENs). In light of this the service would review the advice and assurances they give in cases such as yours’. The service offered Ms X an ex-gratia payment of £100 in recognition of the failure to make her aware of what the procedures around TEN’s actually were and her time and trouble in making this complaint.

What happened from April 2019

13. The Council files show that Ms X contacted the Council about late night noise from the pub by email on 7 April 2019 and asked for the dates the monitoring service would be operating. The environmental health officer replied that monitoring was carried out every second weekend, starting from 13 April 2019.
14. The Council’s files contain an email from Ms X saying she called the out of hours noise service on the weekends of 20 April, 11 May and 26 May but either the Council did not return her call or no visit occurred. Ms X asked for the results of the scheduled monitoring the Council said would happen on 21 and 28 April and 26 May.
15. The Council’s files record monitoring visits on 10 May at 01:50am and 7 June at 1:15am where the pub was quiet with no-one outside.
16. Ms X said that she called the noise monitoring service on 8 and 15 July but there was no response. On 15 July 2019 the Council offered to install noise monitoring equipment at her home in August if the noise monitoring team could not get evidence of noise nuisance in the meantime.
17. Ms X emailed the Council to complain about noise on Friday 26 and Saturday 27 July. She said she had put in two reports using the Council’s noise App.
18. An Environmental Heath officer emailed Ms X on 7 and 8 August to say:
• On Friday an officer recorded noise from a parked car on Friday night so the street noise was not from the pub.
• On Saturday an officer said that music from the pub was just audible on the street so there was no noise nuisance
• The future dates the noise monitoring service was working.
• The Council had sent the noise recording equipment for calibration and repairs and they would install it on its return.
19. Ms X emailed after two weekends in August to say she had experienced disturbance and called the noise monitoring service on 18 August but did not receive a call back.
20. The Council contacted Ms X by email on 29 August 2019 to arrange installation of the noise monitoring equipment. The Council’s files also note it received some noise App recordings on 6 September.
21. Ms X reported noise over the weekend of 14 September on the Monday by email and asked officers to install the noise monitoring equipment. Officers replied that they monitored on 4 October and the pub was quiet, but would arrange further monitoring. Ms X says the case officer did not respond to several emails requesting the installation of the noise monitor.
22. An environmental health officer emailed Ms X on 16 October to say they would install the noise monitoring equipment on 24 October 2019. The Council’s files note that an officer tried to contact Ms X by phone and email but no arrangement was made to install the noise monitor. Ms X says that an officer contacted her at 10 am on 23 October asking to install the equipment at 2 pm. The officer said she would then be on leave until 4 November. Ms X says that providing less than 4 hours notice during the working week was not acceptable.
23. Ms X said there was no noise from the pub in November 2019.
24. The environmental health officer put the noise recording equipment in Ms X’s house on 21 December. The Council collected the equipment in January 2020. The officer emailed Ms X on 6 February 2020 to say there were no recordings on the machine due to a failure and there was no noise when officers visited on 24 January.
25. In March 2020 all pubs closed due to COVID-19. The pub had one final event in August 2020 and closed permanently.

My analysis

Complaint 1: Delay in installing noise monitoring equipment

26. Ms X asked for use of the noise monitor on 15 July 2019. The Council did not install it until 21 December 2019. So, I can see why she complains about delay, especially when a breakdown meant there were no recordings made in December.
27. The Council has said the case officer should have advised Ms X in July 2019 that while the equipment should have been back from repair by end of July there was the possibility that it may not be available. The case officer died in 2021 so there is no way to know why they did not tell Ms X this.
28. An officer told Ms X on 8 August that the noise recording equipment had been sent for calibration and repairs and they would install it when it returned. While the Council could not install the equipment when it first advised, use of an uncalibrated monitor would not be enough evidence for legal proceedings in court. The Council offered Ms X the noise monitor in an email on 29 August 2019.
29. The Council said in an email on 16 October it would install the noise monitoring equipment on 24 October. The officer then gave Ms X a few hours notice of installation of the equipment on 23 October, which meant that it could not go ahead as she was not at home.
30. I do not believe there was delay by the Council. The planned installation of the noise monitor could not go ahead due to equipment repair. This was not in the Council’s control and I am not convinced that it was necessary for the Council to email Ms X to specifically tell her in July that the equipment may not be available if it did not come back from repair. I would only expect the Council to communicate when it knew there was a problem, which it did on 8 August. Ms X says she does not think the case officer would have told her this if she had not chased a response. I understand her concerns and have considered the fact that the Council’s communication was not proactive in my analysis of complaint 3.
31. I do consider the failure to give Ms X more than a few hours notice of the equipment installation on 23 October was fault in the Council’s communication, especially when it had already confirmed it would install the equipment on another agreed date (24 October). This meant the Council did not install the monitor until December. As Ms X has said there was no noise problems in November I cannot say that this caused injustice to her other than annoyance. The fact that the noise monitor failed to record in December is unfortunate but I cannot say that a technical failure is fault.

Complaint 2: response from late night monitoring service

32. Ms X says the Council did not give her the dates the out of hours monitoring service operated. While I note she had to ask for the dates, officers did give them to her when asked. So, on this point I do not find fault.
33. Ms X says she called the out of hours noise service but did not receive a response on:
• 21 April 2019.
• 10/11 May 2019.
• 26 May 2019.
• 5/6/8 July 2019.
• 15 July 2019.
• 17 August 2019.
34. There is no record on the Council’s files of messages from Ms X to the late night noise service, so it is not possible for me to decide what happened. I do think it is likely that Ms X called the service on these dates and did not receive a reply. Although on some of the dates the Council did monitor the pub but did not visit Ms X.
35. Our previous investigation found fault by the Council. The decision statement said that ‘I find fault with the Council’s monitoring of noise nuisance from the pub. The Council served a noise abatement notice in the summer of 2018 because officers were satisfied there was a statutory nuisance. But afterwards, minimal efforts were made to monitor the pub for breaches of the notice. A case where officers have already satisfied themselves of the existence of a statutory nuisance should automatically have high priority precisely because of the existence of a statutory nuisance’.
36. From the evidence I have seen, there was fault in the response from the out of hours noise monitoring service from April 2019 as officers did not respond to most of the calls Ms X made when the noise was occurring. I accept the Council did carry out some scheduled visits to monitor the noise but as the Council had served a noise abatement notice I do think that it would have been reasonable for the Council to try to visit (or at least return Ms X’s calls) when informed that breaches of the notice were occurring. Again, this fault caused the injustice to Ms X of inconvenience and she has the uncertainty of never knowing if nuisance would have been witnessed if the out of hours call outs had been responded to.

Complaint 3: Communication

37. From looking at the Council’s file, the Council did respond to Ms X’s emails. However, I can see that Ms X had to request all the information she wanted and the Council did not routinely send her updates or tell her of the result of monitoring visits.
38. Ms X received no response from leaving messages with the Council’s late noise monitoring service and the Council has no record of when she called. Ms X had to follow up with emails to find out if the Council had monitored and the results of any visits. I do find fault after April 2019 with the Council’s communication with Ms X. As the Council had served a noise abatement notice, there was a reasonable expectation from Ms X that the Council would monitor and/or respond to calls about breaches of the notice.
39. This fault caused the injustice to Ms X of inconvenience and she has the uncertainty of never knowing if nuisance would have been witnessed if the out of hours call outs had been responded to. She was also put to time and trouble of following up each call with emails.
40. I have also identified the Council’s failure to give Ms X more than a few hours notice of the change of date of the installation of noise monitoring equipment was fault. Better communication would have given her more notice to enable her to arrange a suitable time.

Complaint 4: Noise App

41. The Council has said that Ms X did not tell officers she had been using the Noise App until July 2019. Once it was aware, officers reviewed the recordings and they identified that noise was generally occurring on the dates that TEN’s were in place but Ms X does not agree.
42. Ms X has supplied emails from October 2018 that confirm that her use of the Noise App was activated. I cannot look at what happened before April 2019 as this was not part of this investigation. However, the case officer was not aware of her use of the noise App until reminded by Ms X in July 2019. Once this happened the Officer reviewed the recordings.
43. There was fault, as the Council failed to give Ms X clear advice on how and when to use the Noise App. The Council has said it uses the Noise App to show the issue is continuing so as the Council was aware of this from Ms X’s emails, I do not consider it affected the investigation of her noise complaint. I have added a recommendation that the Council should review its policy to confirm how the noise app will be used in future investigations within two months.

Complaint 5: Official complaint response

44. In its stage 2 response the Council apologised for the time it had taken to provide a response and said the Council lost Ms X’s original request to escalate her complaint. So, I find fault as the Council did not respond to Ms X’s complaint within its timescales. I consider the Councils apology, which it has already given, sufficient remedy for any injustice caused to Ms X.

Conclusion

45. There is evidence of fault by the Council, which has caused injustice to Ms X. I now have to consider whether to propose a further financial remedy. Now the pub has closed no further monitoring is needed.
46. Ms X has already received a financial remedy for her previous complaint and for her complaint about the TEN’s. She has also had an apology from the Council.
47. Ms X told me on the telephone she did not want a further financial remedy and that she wants the Council to admit it was at fault. However in response to my draft decision she said that if she was not going to receive a full explanation and apology, she would like a financial remedy.
48. I have decided not to propose a further financial remedy on this complaint, as I consider the Council’s apology and previous financial remedies are sufficient remedy to her injustice and an extra payment for the further time period is not warranted in this case. Miss X wants more detailed explanation on a number of points, but I do not consider further investigation is warranted, as it would not be a good use of public money where the Council has already accepted it was at fault and apologised.

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Agreed Action

49. The Council reviews its policy to confirm how the Noise App will be used in future investigations within two months of the date of this decision.

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Final decision

50. I have completed my investigation of this complaint. This complaint is upheld as I have found fault by the Council which caused injustice to Ms X. I consider the actions agreed with the Council (apology, previous financial remedy and policy review) remedies the injustice caused to Ms X since April 2019.

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Parts of the complaint that I did not investigate

51. I have not investigated Ms X's complaint about the TEN’s. This was investigated by the Council in its response to her official complaint and the Council upheld her complaint. Ms X accepted the Council’s payment of £100 in recognition of the failure to make her aware of the procedures around TEN’s and her time and trouble making the complaint. As the Council has accepted fault and Ms X has accepted a remedy, I do not consider further investigation of this part of the complaint is warranted, event if Ms X has not received answers to every point she has made. I say this as the pub is closed and so the fault will not reoccur. (The Council has asked the service to review the advice and assurances it gives to complainants.)

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Investigator's decision on behalf of the Ombudsman