Summary: The Ombudsman has not found fault with the Council’s decision not to take further action about Miss X’s noise complaint. Miss X also raises a complaint concerning a breach of confidentiality about a safeguarding matter, but the Ombudsman has not determined any fault. However, there was fault by the Council about its communications with Miss X. This caused Miss X an injustice and the Ombudsman has recommended a remedy.

The complaint

1. The complainant, who I refer to as Miss X, is making a complaint in relation to how the Council dealt with her noise complaint against her neighbour. Further, Miss X says the Council were at fault in not responding to her correspondence or telephone calls on the subject. Miss X also complains about a breach of confidentiality by the Council with respect to a safeguarding matter she raised with a Council officer.
2. Miss X says these matters have caused her anxiety and that lessons need to be learned by the Council, particularly with respect to her lost correspondence.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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).
5. We cannot by law 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).

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How I considered this complaint

6. I have reviewed Miss X’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council and applicable legislation. I also gave the Council and Miss X the opportunity to comment on a draft of my decision.

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What I found

Background

7. A statutory nuisance is defined by the Environmental Protection Act 1990 and can include noise disturbances. For noise to be a statutory nuisance, it must either unreasonably and substantially interfere with the use or enjoyment of a home or other premise; injure health or be likely to injure health.
8. Councils have a legal duty to investigate noise complaints. Where they are satisfied a statutory nuisance exists, they are required to serve an abatement notice, that is, an instruction to cease, or minimise, the disturbance. Whether a statutory nuisance exists is for a professionally qualified Environmental Health Officer to decide following a period of investigation.
9. Under Section 82 of the Environmental Protection Act 1990, a member of the public can also ask a magistrates’ court to decide if a statutory nuisance exists.

Chronology of events

10. In November 2019, Miss X telephoned the Council to raise a noise concern about a pond water pump installed by her neighbour. She said the noise from the pump was an interference with her use and enjoyment of her property. However, Miss X was unsure whether she wanted to escalate the matter as a complaint and so asked for a call back from the Council. Miss X says she never received a call back, though was later able to arrange contact.
11. In December 2019, a Council officer attended Miss X’s property to examine the noise interference. During that visit, Miss X and the Council officer discussed an individual safeguarding matter. This led to the Council officer to file an internal safeguarding report within the Council immediately after.
12. Between February and March 2020, Miss X wrote to the Council several times on the subject of her noise complaint, though these were unanswered. In addition, Miss X made several calls to the Council which were not attended to. The Council initially said it had no record of receiving Miss X’s letters though on further inspection, found it had. It apologised to Miss X for not responding to her by post and telephone in a reasonable time and has proposed changes to ensure this communication fault does not repeat itself.
13. In March 2020, the Council wrote to Miss X to explain that it had visited her neighbour and had regard to the frequency, volume and duration of the water pump. It told Miss X that it could not identify a statutory nuisance. The Council also drew Miss X’s attention to her neighbours having installed a timer on the pump to reduce its running time. However, dissatisfied with the response Miss X raised a formal complaint with the Council.
14. In August 2020, the Council confirmed that it could not uphold Miss X’s complaint as regards to the noise complaint as, on inspection, her neighbour’s water pump did not constitute a statutory nuisance. In relation to the safeguarding matter, the Council said its officer had only raised the matter internally within the Council and therefore denied any wrongdoing.
15. Miss X has since raised additional matters concerning her neighbour’s property which is affecting the use and enjoyment of her own. Specifically, Miss X says a pipe coming from her neighbour’s property is emitting smoke towards her kitchen windows. The Council is attending Miss X’s property in December 2020 to investigate the matter.

My findings

Investigating a statutory nuisance

16. By law, I cannot question the merits of the Council’s decision not to take further action about Miss X’s nuisance complaint without fault. The Council attended Miss X’s property within a month of her reporting the matter. It gave consideration to the noise level, frequency and duration and concluded the matter did not constitute a statutory nuisance. I also note that Miss X has said her neighbours have agreed to reduce the operating time of the water pump. In any event, I have not determined any fault by the Council in how it conducted its enquiries.
17. I recognise that Miss X has since raised a further matter with the Council as regards to problems arising from her neighbouring property. However, as the Council’s investigation is ongoing, Miss X’s complaint to the Ombudsman is premature. I cannot add to the ongoing inquiry of the Council and so I am exercising my discretion not to investigate this aspect of Miss X’s complaint.

Communication failings

18. The Council has accepted that it failed to return Miss X’s telephone calls as agreed and further, that it did not register her incoming post on its systems. The Council has apologised to Miss X for these faults and so clearly the Council were at fault. In my view, this fault would have led to a degree of confusion and stress for Miss X. I also feel this would have caused her added time and trouble in taking up her complaint, longer than was necessary. Therefore, I do regard Miss X as having suffered an injustice and I have recommended a small financial remedy, as set out below. I am however satisfied the Council has agreed to review its postal systems to ensure this matter is not repeated.

Safeguarding matter

19. Generally, concerns relating data protection and breach of confidentiality are better raised with the Information Commissioner’s Office (ICO) as this is the most suitable body to consider such matters. However, I have not seen any evidence that the Council officer disclosed the specifics of the safeguarding matter beyond the remit of the Council. Sharing information internally is a vital element of safeguarding vulnerable persons. I have therefore not found fault by the Council.

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Reccomended action

20. Within one month of a final decision, the Council should pay Miss X £100 in respect of its communication failings which justifiably resulted in her suffering a level of uncertainty and distress.
21. The Council has agreed to my findings and recommendation.

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Final decision

22. The Council were not at fault for deciding not to take further action about Miss X’s noise complaint, or how it handled a safeguarding matter. I have however determined fault causing an injustice with respect to the Council’s communication failings and have recommended a remedy.

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Investigator's decision on behalf of the Ombudsman