Summary: Mr F complains about the Council not taking action against a dog that has barked, disturbing his peace for several years. It has not taken account of the affect the barking has had on his mental health. The Ombudsman finds some fault with the Council’s record keeping. But we cannot fault the Council’s decisions that it could not take formal enforcement action, due to not having enough evidence of a statutory nuisance.

The complaint

1. The complainant (whom I shall refer to as Mr F), complains the Council:

• has not taken enforcement action against a barking dog that is a nuisance;
• has not taken account of the affect the dog has had on his mental health;
• did not properly address his concerns in its complaint response.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr F;
• made enquiries of the Council and considered its response;
• considered Mr F’s comments on some information the Council provided;
• sent my draft decision to Mr F and the Council and considered the responses I received.

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What I found

Legal and administrative background

Noise nuisance

6. The Council’s Public Protection Team provides a service to investigate complaints of statutory nuisance. The statutory provisions relating to nuisance can be found in the Environmental Protection Act 1990. Noise can amount to a statutory nuisance. Councils must look into complaints about noise that could be a statutory nuisance.
7. The Courts had made clear that the test of whether there is a noise nuisance is an abstract test of what is ‘reasonable’ to an ‘average’ person. It cannot take consideration of any individual circumstances that might make noise more intolerable to one person over another.
8. Generally, the statutory nuisance will need to be witnessed by an Environmental Health Officer, who will come to an independent judgment based on level, length, timing and location of, for example, the noise. It is solely the council officer’s decision whether or not a noise is a statutory nuisance. A complainant may have a very strongly held and opposing view about the level of the nuisance and its impact on their health and wellbeing. However the law is clear that the decision about this is for the officer alone to make. A council would be wrong to take formal legal action against noise nuisance when it did not believe it had enough evidence to prove ‘beyond reasonable doubt’ that a nuisance existed.
9. Councils can decide to take informal action if the noise complained about is causing a nuisance, but is not a statutory nuisance (ie not enough for them to take formal enforcement action). For example, they can write to the person causing the nuisance, or suggest mediation.

Reasonable adjustments

10. The Equality Act 2010 says any organisation which carries out a public role has a positive and proactive duty to take steps to remove or prevent obstacles to disabled service users accessing a service. They should do this by considering whether they need to make any ‘reasonable adjustments’ to help a disabled service user access a service.
11. The duty is ‘anticipatory’. Within reason, this means an authority should not wait until a disabled person wants to use its services, but should think in advance about what disabled people with a range of impairments might reasonably need. Our view is this means an authority should be proactive in enquiring to service users whether they have any disabilities requiring the council to make reasonable adjustments to allow them to access a service.

What happened

12. I have reviewed all information relevant to this complaint, but have only referred to key points below.
13. The first record on the Council’s file of Mr F reporting to it problems with a barking dog are from December 2015. Then the Council sent Mr F forms to keep a record. It also installed noise monitoring equipment. Its view was that, although a barking dog was recorded on the equipment, it was not enough to make it a statutory nuisance. However, the Council did send the dog’s owner a warning letter.
14. The next record of contact from Mr F on the Council’s file is him reporting the barking dog in 2017. Again, the Council did not have sufficient evidence to show a statutory nuisance. But it did send the dog’s owner a warning letter. Its officer also visited to check the situation.
15. Mr F complained again in May 2018. The Council says this was the first time Mr F made it aware that he was not able to complete forms setting out when the dog was barking due to his disabilities (although I cannot see any record of this advice from him in the Council’s contemporaneous records).
16. Presumably in response to Mr F’s advice about his problem with keeping records, the Council visited Mr F and provided him with a Dictaphone, so he could orally record a diary of incidents. The Council’s records from 2018 showed it also:
• liaised with the police;
• carried out site visits;
• analysed the information Mr F had recorded on the Dictaphone.
17. The Council view was it did not have enough evidence to for it to take action against a statutory noise nuisance. But it kept the file open. Mr F contacted the Council again in March 2019. It asked him to telephone it when he heard the dog barking. When Mr F did this, an officer visited and completed a detailed record of the barking he heard. The Council’s view was the barking was not enough to constitute a statutory nuisance. But it sent the neighbour a letter advising of receiving complaints about his barking dog.
18. In response Mr F’s complaint, the Council says it could see Mr F made complaints about the dog twice more in 2019. But its case recording was lacking for that period. It apologised its case recording then was not more thorough.
19. Mr F made further reports of noise by the dog in April 2020. The Council’s Environmental Health Officer liaised with other professionals about the issue. There is a note that Mr F would need to provide an up to date log, given the time that had passed since the last one he had completed.
20. From May Mr F complained to the Council, completing the Council’s complaints procedure in October. It did not uphold his complaints (apart from the poor record keeping in 2019). In December 2020 Mr F complained to the Ombudsman.
21. In response to my enquiries, the Council advised:

• “Although our investigations did not establish a statutory noise nuisance, we did make appropriate contact with the dog owner and it is believed that our intervention did bring about some improvements, demonstrated by the sometimes-lengthy intervals between Mr [F] accessing our services to report further disturbance.”
• it explained the likely reason its records were inadequate in 2019 was an officer had tried to telephone Mr F and then forget to update the ‘action diary’. It apologised again for the oversight.
• it noted it had received one other complaint from another resident about a barking dog. But that was in 2015.
• an update from the Council noted it had, again, (in 2021), asked Mr F to keep a Dictaphone diary.

22. Mr F has reported ongoing problems with a barking dog. His emails note he is still liaising with the Council’s officers about this. He continues to explain how the barking dog is having a negative effect on his mental health.

Analysis

23. The law says that we should not usually investigate late complaints. Mr F contacted the Ombudsman in December 2020. So any complaint about events before December 2019 is a late complaint. However, given the ongoing nature of the issues, I have used my discretion to investigate the whole of the period Mr F was reporting the barking dog to the Council.
24. My role is to decide if there was any fault in how the Council reviewed and assessed the evidence it had, following Mr F’s reports to it of noise nuisance. It is not to decide whether the noise from the dog is enough to warrant formal action against its owner. I cannot question a decision the Council has made if it followed the right steps and considered relevant evidence.
25. I must also consider if the Council offered Mr F appropriate support in accessing its service.

Taking action about the barking dog

26. The law is clear that for a statutory noise nuisance to exist, it must usually be witnessed and considered to be such by a council environmental health officer.
27. I understand that Mr F has a very strong view that the Council should take action about the barking dog. It is not disputed that Mr F’s neighbour’s dog does sometimes bark. But that is not the same as saying that barking amounts to a statutory noise nuisance (a legal test). The Council’s view was it did not have enough evidence to show the noise from the dog was persistent enough to enable it to take action. It carried out site investigations, asked Mr F to keep diaries and installed noise recording equipment. These were appropriate steps. The fact it decided it did not have enough evidence to warrant action is not something the Ombudsman can criticise.
28. The Council took appropriate informal action in response to Mr F’s reports – it contacted Mr F’s neighbour and sent warning letters. Therefore, I cannot say there was fault in its actions, no matter how strongly Mr F disagrees.
29. The Courts have decided the test of whether noise amounts to a nuisance is not about how noise affects particular people – it is more of a general assessment of the effect of noise. It follows that the Council’s decision on whether the barking dog amounted to a nuisance could not take account of Mr F’s individual circumstances. So I cannot agree with Mr F that the Council should have taken more action against the neighbour because of his mental ill-health.

Facilitating Mr F’s access to the service

30. But that does not mean the Council should not have done anything differently. It was under a duty to make any reasonable adjustments Mr F needed so that he could access the service – Mr F reports that he has mental health disabilities.
31. I can see from the Council’s records it did agree to make adjustments to allow Mr F to access the service – for example it provided him with a Dictaphone, when he told it he could not fill out forms. It also agreed for him to telephone when he heard noise. This led at least once to an officer visiting. These are measures in addition to what it would normally do. So this shows it did change the way it communicated with Mr F. They were appropriate actions for it to take.
32. But the Council says it was not aware until 2018 of Mr F’s problems with filling out forms. That is because it never asked, which it should have done when Mr F contacted it – the duty to make reasonable adjustments is anticipatory. So I find fault with that part of the complaint.
33. It would have been better if the issue of the adjustments Mr F needed because of his disability were prominently flagged on the Council’s system. But the fact the Council has again agreed to provide Mr F a Dictaphone suggests it was aware of its previous view on in its more recent contact with him.

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Recommended action

34. The Council has already apologised to Mr F for its inadequate record keeping. My view is that is a suitable remedy.
35. I also asked the Council that it reminds its environmental health officers that they should be routinely checking with people who complain to the service whether they have a disability that makes communications difficult.
36. The Council says its Public Protection team agreed that it would look to include a statement on its standard letters and log forms. This would advise complainants to contact it to discuss alternative ways of substantiating their complaint, if they had a disability, making communication difficult. That is a proportionate response. I ask the Council to provide an update on the progress of this service improvement within 20 working days of this statement.

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Final decision

37. I am making a finding of fault. The Council has apologised and agreed to make changes to its service. So I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman