Summary: There was no fault in how the Council investigated an alleged noise nuisance, nor is there evidence that Council officers’ attitude towards the complainant were unprofessional. There was minor fault in the Council’s complaint handling, but this did not cause an injustice. We have therefore completed our investigation.

The complaint

1. The complainant, to whom I will refer as Mrs H, says the Council has not properly investigated an alleged noise nuisance she has been suffering. She complains Council officers have a poor attitude towards her, and also about how the Council handled her complaint.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I reviewed the Council’s case notes, and its correspondence with Mrs H.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. In 2020, Mrs H reported to the Council she was suffering noise nuisance from an extractor fan and electricity meter, from two different neighbouring properties respectively.
7. The Council investigated Mrs H’s report. It installed a low frequency sound level meter on two occasions in January and February 2020, for 24 hours each. In June, it installed noise monitoring equipment in her bedroom, and then, at Mrs H’s request, removed it and installed the sound level meter again. The Council also made an out-of-hours visits to Mrs H’s property in February.
8. The outcome of the Council’s investigation was that it could not witness any noise nuisance in Mrs H’s property. The sound level meter had not detected a level of noise which it could consider disturbing, and the noise monitoring equipment had recorded only noise from inside Mrs H’s own property. And the officer who attended visited out-of-hours reported hearing no noise from the extractor fan or electricity meter inside Mrs H’s property.
9. After each stage of the investigation, the Council explained to Mrs H it could not take any action to help her, as it had detected no noise nuisance. It suggested Mrs H might instead be suffering from a medical condition, such as tinnitus, and that she should seek advice from her doctor.
10. Mrs H submitted a Stage 1 complaint on 5 July, addressed to a particular Council officer whose name she said she had been given. She complained:

• the environmental health officer (EHO) who investigated her complaint had been negative, and offered no advice on resolving the situation;
• the EHO had informed Mrs H the Council would not be able to help her if it did not detect a noise nuisance, even before she had installed the noise monitoring equipment;
• the Council had installed the noise monitoring equipment but did not explain how to use it, and the noise monitoring equipment needed to be manually operated, despite the fact Mrs H had limited mobility;
• the equipment had not detected a nuisance because Mrs H did not know how to use it. The Council had posted instructions to her, but they did not arrive until after it had already collected the equipment;
• the officer who had visited out-of-hours in February had heard the noise from the electricity meter in the communal hallway outside Mrs H’s flat, and Mrs H had said the noise would become louder later on. However, the officer had refused to stay longer to listen because of other visits she needed to make;
• the EHO and the building’s managing agent had both spoken to Mrs H’s neighbour in advance, and relied on what he had told them while disregarding what Mrs H had said;
• the electricity meter was not communal but belonged to the neighbour. The landlord and the EHO had conspired with the neighbour to allow him to keep the extractor fan running continuously through the night;
• that the EHO had advised her to contact her doctor. The EHO had apologised for this on the phone to Mrs H, but not in writing;
• the EHO had also failed to apologise in writing for misrepresenting part of Mrs H’s noise complaint, which was that the alleged noise might be from the neighbour’s immersion heater, not that there was water running through the electricity meter box;
• the neighbour had since told Mrs H an electrician had discovered a problem with the electricity meter, but could not afford to fix it. Mrs H said this proved there was a noise nuisance; and
• the EHO had attempted to diagnose her with a medical condition, and only belatedly offered mediation as a possible resolution.

11. Mrs H called the Council on 22 and 28 July to chase it for a response to her complaint. During these conversations, it came to light the officer whose name she had been given to write to had left the Council several years before. However, the letter had been logged as a Stage 1 complaint.
12. Despite this, the Council arranged to make a second out-of-hours visit on 29 July, at approximately 5am. The officer who visited reported he could hear no noise in Mrs H’s bedroom, except for birds and road traffic through the open window.
13. The Council replied to Mrs H’s Stage 1 complaint on 3 August. It said there had been a thorough investigation. It noted the various times it had installed equipment at Mrs H’s property, and the out-of-hours visit in February. The Council explained any noise the officer said she had heard in the hallway was irrelevant, because the question was whether it could be heard inside Mrs H’s flat.
14. The Council noted Mrs H had made 11 recordings on the noise monitoring equipment on 10 and 11 June, but the only noise audible on the records was from inside Mrs H’s property, such as footsteps and the television. There was nothing which sounded like an extractor fan or electricity meter. The noise monitoring equipment had been functioning properly.
15. The Council explained how it assessed low frequency noise, and that the results of the monitoring with the sound level meter had been well below the acceptable threshold. It noted there had been a second out-of-hours visit on 29 July, and the officer had again witnessed no noise nuisance inside Mrs H’s property. The Council reiterated there had been a proper investigation, and explained it could not take action if it had been unable to detect any kind of noise problem.
16. It went on to say, in cases of unexplained and persistent noise, it was normal for it to consider what other support it could offer. In this case, the Council had suggested Mrs H approach her doctor, due to the possibility there was a medical explanation. There had been no malice in this suggestion and the Council defended its decision to suggest it.
17. The Council did not uphold Mrs H’s complaint. It said it had passed on her concern about being given the wrong name to write to, and would receive a response about this separately.
18. Mrs H raised a Stage 2 complaint by phone on 6 August. The Council replied on 24 August.
19. The Council said it had apologised for the fact Mrs H had been given the wrong name to write to when making her initial complaint. However, her letter had still been accepted and processed normally, being allocated to a manager in the environmental protection team for a response on 10 July.
20. The Council reiterated it had not detected any noise nuisance at Mrs H’s property, either with the equipment it had installed or during the two out-of-hours visits. It considered there had been a proper investigation. The Council noted Mrs H had become distressed during the visit of 29 July, and the officer had called an ambulance for her. She had then called her back later to check on Mrs H’s welfare.
21. The Council noted Mrs H considered she had been treated badly, and that officers had discriminated against her because she had a foreign accent. The Council refuted this, saying there was no evidence officers had behaved unprofessionally or discriminated against her.
22. The Council said the EHO would also not be apologising in writing for her suggestion Mrs H seek support from her doctor. It said this was normal practice when a person reported being able to hear noise that others could not. The Council noted Mrs H had visited her GP, who had prescribed sleeping tablets and given her some other advice, which Mrs H had said was helping.
23. The Council did not uphold Mrs H’s complaint and referred her to the Ombudsman.
24. Mrs H sent a further letter to the Council on 3 September. She complained:

• the Council had failed to give her a copy of its complaints procedure, despite many requests, and part of her complaint was about the officer who had replied at Stage 1, which was a conflict of interest;
• a Council officer had written to Mrs H on 6 August to ‘thank her for feedback’ on 28 July, but she did not know what this was about. The officer had apologised for two errors which had “cost [her] dearly healthwise over a period of time”. The officer had also given her the name of a different officer to contact, but this officer had been on leave when she called;
• confusion had arisen during further a phone call with this officer. Mrs H had asked for transcripts of her phone calls with him, but had not received these;
• she disagreed with the outcome of the sound level meter monitoring, because of the noise she could hear;
• she had asked for the noise monitoring equipment to be removed, as she wished it to be replaced with equipment which did not require manual operation. Officers had stood speaking to her through her open front door while installing the equipment, denying her privacy, and had not had written instructions to give to her at the time. The instructions eventually arrived by post after the equipment had already been removed;
• the Council had not acknowledged her Stage 1 complaint, or passed it to the successor of the former officer, whose name she had been given to write to. She had not received a letter the Council said it had sent her;
• the Council had said Mrs H told the officer she could hear the noise, during the out-of-hours visit on 29 July, when in fact she had said she could not hear the noise. Mrs H said this was because the neighbour had stopped making the noise, because he had known the officer was visiting as she had sat outside in her car for an extended period before entering the flat;
• the officer had called her back later that morning, when paramedics were leaving, and had asked to speak to them, which was an invasion of her privacy;
• Mrs H had not asked for a written apology for the EHO’s suggestion of contacting her doctor, but instead for wrongly stating Mrs H had claimed there was water running through the electricity meter;
• the doctor had prescribed sleeping tablets at Mrs H’s request. She had suffered significantly over the course of the pandemic because of the noise, combined with her need to self-isolate.

25. The Council replied on 15 September, but did not add anything further to its previous responses and again referred Mrs H to the Ombudsman. Mrs H then complained to us on 23 September.

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Legislative background

Statutory nuisances

26. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
27. 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

28. 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.

29. 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.
30. 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.
31. Councils can also 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.

Abatement notices

32. 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.
33. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
34. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

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Analysis

35. Mrs H has raised various points about the conduct of the Council’s investigation of the alleged noise nuisance. I will address each individually, in turn, for the sake of clarity.

The Council failed to substantiate a noise nuisance

36. The normal procedure we expect from local authorities, when investigating a potential nuisance, is first to take reasonable steps to gather objective evidence. This could be by visiting to witness the nuisance first hand, using some type of monitoring equipment, or both. Once it is satisfied it has done all it can to gather evidence, the local authority should then make a decision about whether there is a statutory nuisance.
37. This is precisely what the Council has done here. It has installed monitoring equipment on four separate occasions, and carried out two out-of-hours visits. The Council says it has been unable to detect any objective noise nuisance at all through any of these methods.
38. Identifying a statutory nuisance is a matter of professional judgement for a properly qualified officer. The Ombudsman’s role is not to replace officers’ professional judgement with our own, but to ensure the Council has followed the proper administrative procedures during its investigation.
39. Here, I am satisfied the Council has taken proper steps to investigate Mrs H’s reports of nuisance. It has weighed the evidence it gathered, and explained clearly, several times, why it has not substantiated a noise nuisance. I see no grounds to criticise the Council for this decision, and I cannot direct it to make different findings on the evidence, no matter how strongly Mrs H disagrees.
40. I acknowledge Mrs H says the neighbour subsequently said there was a problem with the electricity meter, which he could not afford to fix. However, this does not mean the meter is causing a statutory noise nuisance. The fact remains the Council could not detect a nuisance from the meter inside Mrs H’s property, so, regardless of whether it was faulty, it had no grounds to take action on this.
41. I find no fault here.

The Council did not explain how to use the noise monitoring equipment

42. Mrs H complains the Council did not bring written instructions for the equipment. Although it posted the instructions to her, these did not arrive until after the Council had removed the equipment.
43. In my experience it is unusual for local authorities to provide written instructions for noise monitoring equipment, although I accept it may have been reasonable for Mrs H to request this. It is unfortunate the instructions did not arrive until after the Council had removed the equipment; but it was only in place for 48hrs, so I would not agree this was because the Council delayed sending them.
44. Either way, it is clear Mrs H was still able to use the noise monitoring equipment, making 11 recordings over the night of 10/11 June. So it appears the lack of written instructions did not prevent her from using the equipment as intended.
45. I note Mrs H also complains the Council failed to provide equipment which did not need to be manually operated. However, in my experience, it is normal for noise monitoring equipment to require manual operation. I am unfamiliar with any similar equipment which works automatically.
46. I find no fault here.

The EHO had a negative attitude and conspired with the landlord (a housing association) and neighbour

47. I have seen no evidence to support this complaint. I understand the EHO may have cautioned Mrs H about how the Council could use its powers, but this appears to be a reasonable effort to manage her expectations. There is no suggestion the EHO did not properly consider the evidence the Council gathered, and she gave Mrs H clear explanations for why it did not meet the threshold for the Council to take action.
48. Nor is there any evidence to support Mrs H’s complaint the Council discriminated against her because she has a foreign accent. The service the Council provided here was precisely what I would expect to see. The fact it did not give the outcome Mrs H was seeking does not mean she has suffered discrimination.
49. It is also normal for local authorities to contact the opposing party when investigating a potential nuisance, and also for it involve the housing association, where it is the landlord of the relevant property. This does mean there was a conspiracy.
50. I find no fault here.

Officers spoke to her through her open front door, denying her privacy

51. The Council case notes show two officers attended to install the noise monitoring equipment. To minimise social contact, in light of the Covid-19 pandemic, only one entered the property to install the equipment, while the other remained outside, speaking to Mrs H through the open door.
52. I acknowledge this is not ideal. However, this visit took place under highly unusual circumstances. The Council was seeking to minimise the risk of infection, and this appears to be a proportionate response to this concern. On balance, I do not consider this is a reason to criticise the Council.
53. I find no fault here.

The neighbour knew the officer was visiting during the visit of 29 July

54. Mrs H believes this because the officer sat in her car for some time before approaching the property. I find this too speculative – it would have required the neighbour to have been awake at approximately 5am, aware of which cars were parked outside the building, and able to identify that one of them contained a Council officer who was about to visit Mrs H.
55. Even if the neighbour did know the officer was visiting, it is a further assumption he would then deliberately alter his behaviour to prevent a noise nuisance being detected.
56. Either way, this was only one of six visits to Mrs H’s property to gather evidence (four to install equipment, and two out-of-hours visits). Even if the neighbour had known the officer was visiting on 29 July, and altered his behaviour accordingly, this would not alter the fact the Council also did not find evidence to support Mrs H’s allegations at any other time.
57. I find no fault here.

The EHO suggested Mrs H contact her doctor

58. The Council says it will normally offer this advice, where a person reports a nuisance which is not apparent to anyone else.
59. I appreciate this is a sensitive topic, and that a person might take exception at the suggestion they were experiencing a medical condition. However, I am satisfied with the Council’s explanation it intended no malice, and was simply trying to offer Mrs H support, after deciding it could not use its powers to help her. I do not consider this fault, and it was for Mrs H to decide whether to act on the EHO’s advice.
60. I find no fault here.

The EHO had not apologised in writing for misrepresenting one of Mrs H’s comments

61. Mrs H says she suggested the noise was from the neighbour’s immersion heater, but said the EHO had recorded she had said there was water running through the electricity meter.
62. I acknowledge there may have been a misunderstanding here. However, there is no suggestion this affected the outcome of the Council’s investigation; the fact remains, the Council was never able to detect any form of noise nuisance, despite its various investigative steps.
63. This being the case, I do not consider this misunderstanding is so significant as to amount to fault, nor that it should warrant a written apology. There is no reason to believe it had any wider consequences.
64. I find no fault here.

The EHO did not initially offer mediation

65. Local authorities will generally suggest mediation between two parties, where they have decided they have no grounds to take formal action. To this end, the local authority would first need to investigate, to decide whether there is a statutory nuisance on which they could take formal action.
66. This being the case, I do not consider it fault for the Council to wait until it had completed its investigation, before suggesting mediation. If the Council had found a statutory nuisance, it would not have been appropriate to rely on mediation to resolve it.
67. I find no fault here.

An officer asked to speak to the paramedics after the visit on 29 July

68. Mrs H says the Council officer, who had summoned the ambulance for her, later called and asked to speak to the paramedics as they were leaving. Mrs H says this was an invasion of her privacy.
69. The Council says the officer called to speak to Mrs H to check on her welfare.
70. I was not party to this call and so I cannot say precisely what happened. However, Mrs H has separately told me the officer did speak to the paramedic. It appears the only way this could have happened is if Mrs H passed the phone to the paramedic at the officer’s request. There was nothing to prevent Mrs H from refusing this request, if she considered it an invasion of her privacy.
71. I find no fault here.

Various issues with the Council’s complaints procedure

72. Mrs H complains the Council originally told her to write to an officer who had, in fact, retired several years before. It is not clear how this error occurred, but it appears possible the former officer was still named in an internal Council procedure, to which a member of staff referred while speaking to Mrs H on the phone.
73. This is unfortunate. However, it is clear the Council still received Mrs H’s complaint, and allocated it to an officer for response within a few days. I see no significance in the fact Mrs H was given the wrong name. It is clear it made no difference at all to the Council’s handling of the complaint.
74. Mrs H says her complaint was, in part, about the officer who responded at Stage 1. However, I note this officer is a manager of the relevant team. This appears to be entirely in accordance with the Council’s published complaints procedure, which says:

Stage 1: You should make your complaint to the relevant Service Manager who will receive the details and take any appropriate action.

75. I acknowledge the manager in question had previously had some involvement in the investigation. But it is a general principle that complaints will be dealt with locally, in their early stages. This may mean, for example, that the manager of the relevant team will be asked to respond, but this does not automatically mean a conflict of interest. The manager was not the officer leading the investigation into Mrs H’s allegations, and I do not consider it was inappropriate for him to respond to her first complaint.
76. I do note, however, Mrs H says she did not receive an acknowledgement the Council had received her complaint. The Council’s policy says it will do this within five working days. I find fault on this point.
77. It is evident Mrs H did not know the Council had received her complaint, and so I accept this led to her calling the Council to chase it up. However, this was the only consequence of this fault. I do not consider being required to make a phone call to represent a significant injustice requiring a remedy.
78. Mrs H complains the Council failed to provide a copy of its complaints procedure, despite numerous requests.
79. It is apparent these requests were made by phone, and I do not, therefore, have a detailed understanding of which occasions Mrs H made this request. The fact remains that Mrs H was able to submit her complaint, and, notwithstanding the failure to send her an acknowledgement, the Council dealt with it effectively, giving her appropriate, detailed responses in good time. There is nothing to suggest a failure to provide the complaints procedure meant Mrs H was obstructed in making her complaint. I therefore consider it would be disproportionate to investigate this point further.
80. Mrs H has raised several other complaints about information she received from the Council’s complaints department, including being told to call an officer who was on leave, and not receiving copies of transcripts of phone calls she had been promised.
81. The evidence I have does not serve to illuminate the facts behind these points. However, again, I am not persuaded it would be proportionate to investigate further. I do not consider there is anything to criticise with the actual substance of the Council’s complaint responses. While I accept there may have been some confusion about the complaints procedure, it is clear Mrs H has received an apology for this, and, as I would not recommend any remedy beyond an apology, there does not appear to be anything more the Ombudsman could add here.

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Summary

82. There is no fault in how the Council investigated Mrs H’s reports of noise nuisance. The Council has followed the procedure we would expect, made robust, evidence-based decisions, and explained clearly why it cannot take action. There is no reason to criticise the conduct of any of the officers involved in the investigation.
83. I find fault the Council failed to acknowledge Mrs H’s Stage 1 complaint, as its policy says it will. But this did not cause her an injustice, and it made no difference to the outcome of her complaint. I have found nothing else of significance to criticise in the Council’s complaint handling.

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Final decision

84. I have completed my investigation with a finding of fault which did not cause injustice.

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Investigator's decision on behalf of the Ombudsman