Summary: The Ombudsman found fault on Mr W’s complaint about the way the Council failed to respond properly, or at all, to his reports of noise nuisance from construction works on 2 nearby sites that took place 7 days a week. It failed to: consider evidence submitted; tell him he was blocked from using its recording app; tell him about an officer moving jobs; tell him it had closed his case and what to do if problems continued; check blocked accounts. The agreed action, and the action taken, remedies the injustice caused.

The complaint

1. Mr W complains about the Council’s failure to respond properly, or at all, to his reports of noise and disturbance from daily construction activities on a nearby site which contravened a Control of Noise on Construction Sites notice it served: as a result, he was put to the time and trouble of repeatedly pursuing his reports, and his quality of life was affected from the noise he suffered 7 days a week from 7am until 9pm.

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The Ombudsman’s role and powers

2. 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)
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)

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Council’s enforcement policy (October 2012)

4. The main aim of the policy is to ensure compliance with the legislative framework within which environmental health operates to protect individuals and consumers, for example. Fair, proportionate, targeted, and effective enforcement is essential to protecting the health, safety, and economic interests of all concerned.
5. Prevention is better than cure so it will actively involve working with businesses and the public to advise and assist with compliance and where formal action is necessary, each case is considered on its merits. Enforcement decisions will be fair, independent, and objective. The policy helps promote efficient and effective approaches to regulatory inspection and enforcement.
6. When considering what action to take it will look at addressing the harm caused by non-compliance, deter future non-compliance, and change the behaviour of the offender.

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How I considered this complaint

7. I considered all the information Mr W provided, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I did not send him a complete copy as some of it contains information about third parties which need to remain confidential. I sent a copy of my draft decision to Mr W and the Council. I considered their responses.

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What I found

8. Mr W has lived in his home for about 2 years. The first summer he moved in, building works started on 2 nearby adjoining properties. The works lasted about 10 months. Mr W reported the developer to the Council because works started at 7am every day, including weekends, and ended about 9-10pm. In response to my draft decision, the Council said evidence through the noise recording app from him suggested he was affected by noise between 7am and 8am on 4 occasions over a month. Mr W complains that although the Council served a Control of Noise on Construction Sites notice (the notice) on the developer, owners, and occupiers, the problem continued.
9. Mr W is unhappy that despite sending noise and video recordings, the Council took no further action. It delayed responding to his reports. He gave the example of it taking about 5 months for officer A, in the environmental protection team (EPT), to view the videos he sent on a USB stick.
10. The records show Mr W first sent the Council reports about noise on the site in August 2019. I have seen a copy of the email officer A sent Mr W in response confirming warning letters about noise were sent to the owners and occupiers of the 2 properties. I saw copies of these letters. Officer A asked him to use a mobile phone noise app to record and send samples of noise and told him his case would be reviewed after about 3 weeks. After 4 weeks, the app blocks the user which means he cannot make any further recordings.
11. In September, officer A again wrote to Mr W after speaking to him a few days earlier on the telephone. The officer told him the Council had served notices on the owners of the 2 properties and explained what this meant for working hours on the site. I saw copies of the letters and the notices sent. The notices set out a schedule of conditions which included no works on Sundays or bank holidays, and restricted weekday works to between 8am and 6pm. It set out conditions about certain equipment needing muffling, for example.
12. The Council accepted Mr W sent evidence of a continuing problem with works on this site after it served these notices. He sent noise recordings through the app on his mobile phone. Upon their receipt, officers should have made further enquiries with further intervention by the EPT. As this failed to happen, works continued at unsociable hours and the EPT failed to respond to his reports for which the Council apologised.
13. It also accepted the videos he sent in November were not viewed until March 2020 for which it again apologised. It told Mr W at this point, its legal team decided the video and noise recordings would not prove the notices were breached beyond all reasonable doubt. This is because they were served on specific companies. In response to my enquiries, the Council confirmed the legal advice was verbally given to the officer.
14. Further investigation by officers was needed to prove the link between the works shown on video and those covered by the notices. By the time officers viewed it, the works were completed. This meant it was not possible to identify and interview those shown on the videos.
15. The Council accepted emails Mr W sent officer A during October 2019 and June 2020 were not logged on to its systems. Nor is there a record of the officer responding to them. The Council accepted this was unacceptable for which it apologised.
16. The Council reviewed what went wrong on the case. Officer A was a contractor who sometimes worked for EPT on a part time basis during busy times. When officer A completed the working period with the Council, had procedures been followed, all active reports should have been reallocated to other officers in EPT. Officer A failed to do this and nor did other officers identify this failing despite Mr W continuing to send recordings. The Council told Mr W it would urgently: review the handover from contractors and the logging and monitoring of reports received through the app; review processes and procedures for investigating breaches of notices.

Analysis

17. I make the following findings on this complaint:
1. The records show officer A visited the site in September 2019 shortly after receiving Mr W’s report. The officer told the contractor the Council would serve a notice on the owners about site working hours. Later that day, officer A served notices on the owners/developers of the 2 adjoining properties. Three days later, the officer visited the site again following further reports and spoke to a different contractor on one of the properties and the same one at the other property. The officer sent Mr W an email updating him on action taken. I found no fault in the way the Council dealt with Mr W’s reports received up to September.
2. Officer A closed Mr W’s case following site visits in September. There is no evidence of the officer telling Mr W of this action. This decision blocked him from using the noise app. Despite saying blocked users get an email prompting them to make contact with EPT, there is no evidence this was sent. There is no evidence he was told about blocking at the time either, what this meant, or what he needed to do if problems continued. This is fault.
3. In October, Mr W submitted about 40 reports through the noise app. There is no evidence showing the Council acknowledged or acted on them. This is fault.
4. Blocked complainants who upload reports through the app are not automatically highlighted or displayed in the portal the Council accesses. Officers were not routinely checking for relevant reports from blocked complainants. These failures meant the EPT was unaware of his further reports and failed not only to acknowledge them, but to investigate them. I consider these failures are fault.
5. Mr W sent officer A the USB containing video evidence. He sent this in November. There is no evidence showing what the Council did in response upon receipt. The Council accepted it failed to act on receipt of it. This is fault.
6. In November and December, Mr W submitted a further 22 reports of noise disturbance. There is nothing to show the Council actioned these.
7. The Council failed to tell Mr W officer A was, at that time, no longer working with the EPT. This means he was unaware of who he should now communicate with about reports. This is fault.
8. The Council confirmed there was no proper handover when officer A stopped working for the EPT. This meant there was a failure to realise his case remained active. This is fault.
9. The Council confirmed other officers appeared to direct Mr W to officer A who was no longer working with the EPT although still worked within the department on other work. This is fault.
10. In January and February 2020, the records show 2 telephone messages left for officer A but there is nothing to show the officer returned these calls. This is fault.
11. In March, an officer spoke to Mr W who was told about the need to put the videos he sent in November 2019 in to a format officers could view. Its internal IT team had done this but, the video was of poor quality. He was told officer A could not take the case forward for prosecution. In addition, one of the properties was now sold and occupied. He was also told officer A would, when back in the office at the end of the week, get legal advice.
12. There was a failure to provide Mr W with updates about the case. This is fault.
13. I am satisfied the Council failed to meet the aims of its enforcement policy to act effectively to ensure compliance, deter future non-compliance, and change the behaviour of the offender.
14. I am satisfied these failures caused Mr W avoidable injustice. This is because they caused the following distress: delays meant he lost the opportunity to have his reports properly investigated; he has the uncertainty of whether a proper investigation might have led to a different outcome with further action, formal or informal, taken against the developers/owners which might have meant he would not have had to put up with the disturbance for as long as he had; he went to the time and trouble of continuing to send reports to the Council, unaware officers were unable to view them; he experienced inconvenience and frustration during a stressful period.

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Agreed action

18. I considered our guidance on remedies.
19. The Council agreed to do the following within 4 weeks of the final decision on this complaint:
1. Send Mr W a written apology for failing to: acknowledge and act on the video evidence sent in the USB; tell him he was blocked from using the noise app and explaining what this meant and what he needed to do if he continued to experience problems; tell him about officer A leaving this post and who he should contact in case of future problems; have a proper handover of the case when officer A left; explain his case was closed and the implications of this; routinely check evidence from blocked accounts for ongoing continuing problems; direct him to officers who were in the EPT who could help; provide regular updates on the case.
2. Pay £350 to Mr W for avoidable injustice the faults caused him.
20. In response to my draft decision, the Council provided a copy of its newly revised ‘General Service Request Procedure’ for the EPT which addresses the faults identified in this complaint.

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Final decision

21. The Ombudsman found fault on Mr W’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman