Summary: Miss B complained the Council failed to investigate a noise and pollution nuisance correctly and did not take enforcement action. Miss B says the nuisances caused her and her partner distress and affected their health. We found fault with the Council for delays in its complaint procedure. This caused Miss B frustration. The Council will pay Miss B £100 for the frustration caused by its delay responding to her complaint.

The complaint

1. Miss B complained the Council failed to investigate a noise and pollution nuisance correctly and did not take enforcement action.
2. Miss B feels the Council’s failure to address the nuisances violated her Human Rights and the Council discriminated against her and her partner. She says the nuisances caused her and her partner distress and affected their health.

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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. 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 considered:
• Miss B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
7. Miss B and the Council commented on a draft decision. I considered their comments before making my final decision.

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What I found

Legislation and Guidance

8. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential statutory nuisances. A nuisance is defined as something which unreasonably interferes with someone else's enjoyment of their home or garden. Noise and fumes can be statutory nuisances.
9. For a council to consider something a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premise; and / or
• injure health or be likely to injure health.
10. Under the EPA, a council must take 'all reasonable steps' to investigate complaints about potential statutory nuisances.
11. There is no fixed point at which a nuisance becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather evidence. The Council should consider the type, duration, intensity, and location of a nuisance when deciding if it is a statutory nuisance.
12. If the Council considers the nuisance is a statutory nuisance it must serve an abatement notice under section 80 of the EPA. If the recipient of the abatement notice breaks or fails to comply with the notice, they may be guilty of a summary only offence.
13. The purpose of a Community Protection Notice is to stop a person causing particular and ongoing problems or nuisances which negatively affect the community’s quality of life. It does so by imposing any of the following on the individual issued with it:
• a requirement to stop doing specified things;
• a requirement to do specified things; or
• a requirement to take reasonable steps to achieve specified results (e.g., so the anti-social behaviour does not recur)

COVID-19 pandemic

14. From March to May 2020, England was in the first of three national lockdowns. People could only leave their home for limited purposes including travelling to and from work, but only where this was necessary. In May 2020, the Government said people who could not work from home should return to the workplace. In September 2020, the Government announced new restrictions including working from home. A second national lockdown came into force from November to December 2020. The third national lockdown was in place from January to March 2021.

Council’s environmental protection procedures in 2020

15. I have set out below relevant points from the Council's procedures.
16. There are six main steps to carrying out a full and proper investigation into a complaint. These are summarised below:
• Interview the complainant.
• Decide on a strategy for gathering more evidence.
• Inform complainant about the investigation strategy.
• Gather evidence.
• Assess and evaluate the evidence. The officer must decide if there is enough evidence to establish statutory nuisance in Court.
• Decide what action it can take. If there is evidence of a statutory nuisance, a notice must be served if the case officer is satisfied there is enough evidence to act.

Council’s complaint procedure

17. The Council has a three-stage complaint procedure.
18. Stage 1: A senior officer within the service area will deal with the complaint and inform the complainant of their decision. The Council aims to provide a response to the complainant within 10 working days.
19. Stage 2: The review should be undertaken by the relevant director or when appropriate their delegated senior officer who is not the subject of the complaint. They will provide a response to the complainant within 15 working days. If the complaint review is going to take longer, the Council will tell the complainant and give them an expected date for the response.

Stage 3: If the complainant remains dissatisfied with the response, they can request their complaint is considered for a Stage 3 Panel Review. Upon receipt of the request, the Customer Relations Manager, in consultation with the Chair of the panel, will review the request and decide if it is appropriate for a review panel to be convened, or if it is more appropriate that the complainant is advised to contact the Local Government and Social Care Ombudsman.

What happened

20. This chronology includes key events in this case and does not cover everything that happened.
21. In 2019 the police issued Miss B’s neighbours with a Community Protection Warning Notice under the Anti-Social Behaviour Crime and Policing Act 2014. The notice required Miss B’s neighbours not to cause a noise nuisance.
22. Miss B reported a noise nuisance to the Council from March to September 2020. The nuisance was from a motorbike and music being played. The Council assigned an Environmental Health officer to her case. Miss B and her partner sent witness statements to the officer describing the noise and its impact.
23. In April 2020, the officer invited Miss B to make recordings on a noise app. Miss B used the app and logged recordings of the noise.
24. In May 2020, the Council told Miss B it had listened to the recordings and did not have enough evidence to say her neighbour had breached the community protection warning notice issued in 2019. She advised she was waiting on information from the police and would update Miss B when she had received it.
25. The officer visited Miss B’s property and measured the noise using a sound meter. The officer found the noise emitted by Miss B’s neighbour was not louder than the background sounds from the community.
26. In June 2020, Miss B contacted the officer on four separate occasions to ask them to attend her property to witness the noise nuisance. On three occasions the Council officer was unavailable. On the other occasion, the officer left the office to attend the property, but before she arrived Miss B reported the noise had stopped.
27. Miss B complained to the Council in July 2020. She said the Council had failed to do anything about the noise nuisance. The Council told her it had started to investigate her complaint but because of COVID-19 it was experiencing service disruption and delays. It said it would contact her once it had completed a review of her case. It told her to make contact if it could help her in the interim.
28. In August 2020, Miss B reported to the Council that fumes were coming into her house from the motorbike.
29. The Council updated Miss B about her case in August 2020 and apologised for the delay. It confirmed officers had been unable to prove a statutory nuisance from either the noise app recordings or site visits. It said the investigation could continue and asked Miss B if she would like it to reallocate the case to a different officer.
30. In September 2020, Miss B responded and said she would like the Council to continue its investigation into the noise nuisance. The officer contacted Miss B to arrange a site visit to witness the noise nuisance. Miss B asked the officer not to contact her again about her noise nuisance complaint.
31. In October 2020, Miss B emailed the Council and asked it to consider her complaint at stage 2 of its complaint procedure. The Council responded at stage 2 of its complaint procedure in January 2021. It apologised for its delayed response. It explained the measures it had taken to investigate her noise nuisance. It reminded her that it had contacted her after its stage 1 response and offered to attend her property with the noise monitoring equipment, but she had not accepted the offer. The Council did not uphold her complaint.
32. Miss B was unhappy with the Council’s stage 2 response. She said it was not appropriate for the officer assigned to her case to have contacted her while the complaint investigation was ongoing. She said she made it clear she did not want to work with the officer. She asked the Council to consider her complaint at stage 3 in February 2021.
33. The Council responded in March 2021. It told her it would not consider her complaint at a Stage 3 Panel Review. It explained the panel would not question the merits of a suitably qualified officer’s decision on whether a noise was a statutory nuisance. It signposted her to the Ombudsman.
34. In response to my enquiries, the Council did not meet the deadline to provide the information I requested. This was because the Council could not access the record of its investigation into noise nuisance because an officer had stored them on their own work computer and was on leave. When the Council did respond it said:
• COVID-19 caused an overwhelming surge in complaints (1200% increase) and because of this, the Council prioritised complaints on a risk and threat basis.
• The service’s risk assessment told officers to avoid all physical contact with one another and the public. It cancelled all noise kit installations. The department invested in a noise app, so it could continue to investigate noise nuisance complaints.
• Miss B’s noise nuisance investigation remained open. It said it was waiting for Miss B to contact it when the noise was being emitted so an officer could witness the noise.
• Its delay in responding to the complaint between October 2020 and January 2021 was because of demands on the Head of Service and the Director during the pandemic.

Analysis

35. The Ombudsman cannot question the merits of a decision about whether a noise is a statutory nuisance unless there is evidence of fault in the way it was reached.
36. In this case, the officers considered evidence from readings from a noise recording app and a site visit. They reached a professional judgement the noise was not a statutory nuisance. I can see no fault in the way this decision was reached. This means I cannot question the Council’s assessment the noise disturbance was not a statutory nuisance. Where a Council has not found a statutory nuisance, it cannot serve an abatement notice.
37. There were significant delays in the Council’s complaint responses. This was fault and caused Miss B frustration. The Council accepted this in its responses and apologised. I have recommended the Council make a financial payment to Miss B to recognise the impact of its delays.
38. The Council’s statutory nuisance investigation records should be accessible to those in the Community and Environmental Services department. Storing the records on a work computer that could not be accessed by the department was fault.
39. I did not find any evidence the Council discriminated against Miss B or violated her Human Rights.

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Agreed action

40. Within one month of the final decision, the Council will:
• Pay Miss B £100 for the frustration caused by the Councils delay responding to Miss B’s complaint.
• Review its record keeping procedure to ensure statutory nuisance investigation records are accessible to those working in the Community and Environmental Services department.
41. The Council should provide the Ombudsman with evidence these actions have been completed.

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Final decision

42. I have completed my investigation and uphold Miss B’s complaint. Miss B was caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman